Cross-border tax problems in private groups rarely look like cross-border tax problems. They look like a family member who moved overseas, an inheritance from a foreign relative, a parent’s trust in another country, or an intercompany charge between two entities that happen to be in different jurisdictions.
The provisions that catch these arrangements — residency, section 99B, the transferor trust rules, transfer pricing — were mostly written with larger taxpayers in mind. They apply to everyone.
Where we act
What we do
- Individual tax residency: the statutory tests, the ordinary concepts test and departure planning
- Treaty residency and tie-breaker analysis under Australia’s double tax agreements
- Section 99B and amounts paid or applied from foreign trusts to Australian residents
- Foreign inheritances, foreign estates and distributions to Australian beneficiaries
- CGT and non-residents, including taxable Australian property and the main residence exemption for foreign residents
- Transferor trust and controlled foreign company rules
- Transfer pricing for privately owned groups, including simplified record-keeping options
- Thin capitalisation and the debt deduction creation rules
- Withholding tax on interest, dividends and royalties
- Inbound investment structuring, including foreign purchaser duty and land tax surcharge consequences
Common situations
What we are usually brought in on
Residency was assumed, not tested
Residency is decided on facts as they were, year by year. Where it was assumed and never analysed, an ATO review can reopen several years at once.
Money comes in from a family trust overseas
Section 99B can assess the Australian resident beneficiary on amounts paid or applied from a foreign trust, in circumstances that feel to the family like receiving their own inheritance.
A related-party charge crosses a border
Management fees, service charges and intercompany loans between related entities in different countries engage the transfer pricing rules regardless of the size of the group.
A beneficiary moves overseas
A single non-resident beneficiary can change the CGT treatment of trust distributions and create withholding obligations that were never contemplated when the trust was set up.
How we work
Our approach
Facts, chronologically. Residency and foreign trust questions are decided on a timeline. Building that timeline properly is most of the work.
Coordinate with foreign advisers. We do not advise on foreign law, and we say so. Where the answer depends on it, we work with an adviser in that jurisdiction.
Document before departure. The best time to deal with a residency question is before the person leaves, not three years later.
Common questions
When does someone stop being an Australian tax resident?
There is no single date and no simple test. Residency is determined under several alternative tests, and for people with continuing Australian connections the analysis is fact-heavy. Where a double tax agreement applies, a person can be a resident of both countries under domestic law and the treaty tie-breaker then determines which country has primary taxing rights.
Is a foreign inheritance taxable in Australia?
A straightforward inheritance of capital is generally not itself assessable, but amounts paid or applied to an Australian resident beneficiary from a foreign trust can be assessed under section 99B, and the exceptions are narrower than most people expect. Where the estate is administered through a trust structure, the analysis needs to be done before the money moves.
Have a matter you want a straight answer on?
Most engagements start with a short conversation about the issue, what the exposure looks like and what it would cost to deal with it properly. There is no charge for that conversation.