Choosing a Structure in a Foreign Country depends on the after-tax result in the Australian Investor’s hands. Here’s why!

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CURRENT AS AT 23 December 2020

When we refer one of our Australian clients to an international colleague, the first step in the engagement is often to choose the foreign structure that gives our client the optimal outcome.  Several factors must be considered, but the global tax outcome is always one of the most important. In such cases, the expertise of a tax accountant becomes invaluable.

Understanding the global tax outcome requires an analysis of the tax that will be payable in the foreign country and the final tax to the Australian investors, so below is a brief and basic summary of how Australian tax rules apply in various scenarios.

Generally, where an Australian company operates a business overseas, either as an incorporated subsidiary or as a branch of the Australian company, the income derived by the company from that business is exempt from tax in Australia.

Unfortunately, however, when the profit is distributed to Australian shareholders of the Australian company, the tax rate may be higher than expected.

For a straightforward example, assume an Australian resident individual owns 100% of an Australian resident private company (AusCo).  AusCo owns 100% of a foreign resident company (ForCo).  ForCo makes a profit of $100 and pays foreign corporate tax of $25, leaving distributable cash of $75.  ForCo pays a dividend to AusCo of $75, from which it deducts a withholding tax of $5.

The Australian company’s dividend received is exempt from tax, and AusCo is therefore not entitled to a foreign tax credit for the withholding tax, so it is left with an after-tax profit of $70.

As no tax is paid on the $70 dividend, no franking credits are generated, and the profit is eventually paid to the Australian shareholder as an unfranked dividend.  The dividend is then taxed at the shareholder’s marginal rate of tax.  Assuming the highest marginal tax rate of 47% applies, a tax of $32.90 will be incurred.

The total tax on the profit is, therefore, $62.90, being the $25 of foreign tax, plus the $5 of withholding tax, plus the $32.90 of Australian income tax.  This is an effective rate of 62.9%.

Notably, only the foreign tax is payable when the profit is earned.  Withholding tax is incurred when ForCo pays a dividend, and the Australian tax is only incurred when AusCo pays an unfranked dividend to its shareholders, which could be several years later.

The global tax rate can sometimes be reduced where a tax-transparent entity (such as a US LLC) is used in the foreign country, but only where the investment in the foreign entity is held by Australian individuals or a trust rather than corporate ownership.  The trade-off is that all tax is payable when the profit is earned.

The table below compares an Australian investment in a foreign corporation through an Australian corporate and an Australian investment in a foreign tax transparent entity with Australian individual shareholders.

Foreign Company Foreign Tax Transparent Entity
Profit $100.00 $100.00
Foreign Tax Paid (by either company or shareholder) $25.00 $25.00
WHT $5.00 $5.00
Net Repatriated to Australia $70.00 $70.00
Australian Tax $32.90 $47.00
Credit for Foreign and Withholding Tax $0.00 $30.00
Total Tax Paid $62.90 $47.00
Global Tax Rate 62.9% 47%

The decision on which structure is best may come down to how long the business plans to reinvest its profits in business growth.  In the above example, using a foreign company reduces the immediate tax liability by $17 per $100 of profit, which can be reinvested until dividends are paid.

So when discussing a new structure for an Australian-owned business in your country, the above will give you some background of some of the discussions we will have with you to ensure we obtain the optimal after-tax result for our clients. The tax paid in your country, as well as the tax paid in Australia when it is repatriated, will help guide you as to what structure will best suit the client.

Kreston Stanley Williamson Team 

Correct as of 16 December 2020

Disclaimer – Kreston Stanley Williamson has produced this article to serve its clients and associates. The information contained in the article is of general comment only and is not intended to be advice on any particular matter. Before acting on any areas in this article, you must seek advice about your circumstances. Liability is limited by a scheme approved under professional standards legislation.

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