Taxation Ruling

TR 2004/15W

Income tax: residence of companies not incorporated in Australia - carrying on business in Australia and central management and control

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FOI status:

may be released

Notice of Withdrawal

Taxation Ruling TR 2004/15 is withdrawn with effect from today.

1. TR 2004/15 set out the Commissioner's view on how to apply the central management and control test of company residency in paragraph (b) of the definition of 'resident' or 'resident of Australia' in subsection 6(1) of the Income Tax Assessment Act 1936.

2. TR 2004/15 has been replaced by Taxation Ruling TR 2017/D2 Income tax: Foreign Incorporated Companies: Central Management and Control test of residency issued on 15 March 2017. The new draft ruling sets out the Commissioner's revised view on how to apply the central management and control test of company residency following the High Court decision in Bywater Investments Limited & Ors v. Commissioner of Taxation; Hua Wang Bank Berhad v. Commissioner of Taxation [2016] HCA 45; 2016 ATC 20 589. To the extent that the views contained in TR 2004/15 are still current, they have been incorporated into TR 2017/D2.

3. Taxation Ruling TR 2017/D2 will apply from 15 March 2017 to taxpayers to the extent that it does not conflict with the terms of any settlement or dispute agreed to before the issue of the Ruling.

Commissioner of Taxation
15 March 2017

Previously released as TR 2004/D7.

References

ATO references:
NO 1-9GERCON

Related Rulings/Determinations:

TR 92/1
TR 92/20
TR 97/16

Subject References:
carries on business in Australia
central management and control
residence of companies
resident

Legislative References:
ITAA 1936 6(1)
ITAA 1936 6(1)(b)
ITAA 1997 995-1(1)
TAA 1953 Pt IVAAA

Case References:
American Leaf Blending Co. Sdn Bhd v. Director-General of Inland Revenue (Malaysia)
[1978] 3 All ER 1185

Beckwith v. R
(1976) 135 CLR 569
Bedford Overseas Freighters Ltd v. Minister of National Revenue,
70 DTC 6072
Brennan v. Comcare
(1994) 50 FCR 555
(1994) 122 ALR 615
Broken Hill South Ltd (Public Officer) v. Commr of Taxation (NSW)
(1937) 56 CLR 337
BW Noble Ltd v. Mitchell
(1926) 11 TC 372
California Copper Syndicate (Limited and Reduced) v. Harris
(1904) 5 TC 159
Charles v. FC of T
(1954) 90 CLR 598
6 AITR 85
De Beers Consolidated Mines Ltd v. Howe
[1906] AC 455
Egyptian Delta Land and Investment Company Ltd v Todd
[1929] AC 1
Esquire Nominees Ltd v. FCT
(1973) 129 CLR 177
72 ATC 4076 (High Court)
73 ATC 4114
(1973) 4 ATR 75 (Full High Court)
FCT v. Commonwealth Aluminium Corporation Ltd
(1980) 143 CLR 646
80 ATC 4371
(1980) 11 ATR 42
FC of T v. Slater Holdings Limited
(1984) 156 CLR 447
84 ATC 4883
(1984) 15 ATR 1299
FCT v. Total Holdings (Australia) Pty Ltd
79 ATC 4279
(1973) 9 ATR 885
IRC v. Westleigh Estates
[1924] 1 KB 390
Jackson v. Secretary, Department of Health
(1987) 75 ALR 561
John Hood and Company Ltd v. Magee
(1918) 7 TC 327
John v. FCT
(1989) 166 CLR 417
89 ATC 4101
(1989) 20 ATR 1
Kennedy Holdings & Property Management Pty Ltd v. FC of T
92 ATC 4918
Koitaki Para Rubber Estates Ltd v. FCT
(1941) 64 CLR 15 (High Court)
(1941) 64 CLR 241
(1941) 6 ATD 82
(1941) 2 AITR 167 (Full High Court)
Lilydale Pastoral Co Pty Ltd v. FCT
(1987) 15 FCR 19
87 ATC 4235
18 ATR 508
(1987) 72 ALR 70
Malayan Shipping Co Ltd v. FCT
(1946) 71 CLR 156
(1946) 8 ATD 75
(1946) 3 AITR 256
Mitchell v. Egyptian Hotels Ltd
(1915) AC 1022
New Zealand Forest Products Finance NV v. Commissioner of Inland Revenue
17 NZTC 12,073
North Australian Pastoral Co Ltd v. FCT
(1946) 71 CLR 623
(1946) 8 ATD 121
(1946) 3 AITR 314
Ogden Industries Pty Ltd v. Lucas
[1970] AC 113
Paisner v. Goodrich
[1955] 2 QB 353
Project Blue Sky Inc v. Australian Broadcasting Authority
(1998) 194 CLR 355
Radnor Pty Ltd v. FC of T
(1990) 21 ATR 608
90 ATC 4637
The Swedish Central Railway Company Ltd v. Thompson
(1925) 9 TC 342
Union Corporation Ltd v. Inland Revenue
[1953] 34 TC 207
Unit Construction Co Ltd v. Bullock
[1960] AC 351
[1959] 3 All ER 831
Waterloo Pastoral Co Ltd v. FCT
[1946] 72 CLR 262

Other References:
Hamilton RL, Deutsch RL and Raneri JC, Guidebook to Australian International Taxation, Prospect Media Pty Ltd, 2001
Magney T 'Australian Singapore Taxation aspects of carrying on business in Singapore', June 1975 Australian Tax Review at page 69