A public ruling, when issued, is the published view of the Commissioner of State Revenue (the Commissioner) on the particular topic to which it relates. It therefore replaces and overrides any existing private rulings, memoranda, manuals and advice provided by the Commissioner in respect of the issue(s) it addresses.
Where a change in legislation or case law (the law) affects the content of a public ruling, the change in the law overrides the public ruling—that is, the Commissioner will determine the tax liability or eligibility for a concession, grant or exemption, as the case may be, in accordance with the law.
AB Co Pty Ltd is incorporated in Australia. A and B are both directors and 50% shareholders of AB Co. A and B are both Australian citizens. B’s spouse, C, is a foreign person. C is not in a position to control any voting or potential voting power in the corporation. To determine whether AB Co is a foreign company, it does not matter that C is a foreign person because C does not have any control or interest in AB Co, in the relevant sense. Based on these facts, AB Co will not be a foreign company.
DE Co Pty Ltd is incorporated in Australia. The shareholders of DE Co are D (30%); D’s spouse, E (30%); and F (40%). D and F are Australian citizens. E is a foreign individual. F is not a related person of D or E. In determining whether DE Co is a foreign company, D and E’s interests will be considered together (60%) because D and E are related persons and both are shareholders of the corporation. The company is considered to be foreign controlled, and therefore a foreign company.
F, G and H are siblings and are all Australian citizens. They collectively own 100% of the units in FGH Trust. Their mother is a foreign person, but she has no trust interest in the Trust. FGH trust is not a foreign trust.
X Co Pty Ltd (X Co) is the trustee of the X Unit Trust. U, V and W hold units in the following proportions in X Unit Trust respectively: 35%, 40% and 25%. U and V are unrelated foreign persons; whereas W is an Australian citizen, unrelated to either U or V. The X Unit Trust is a foreign trust because at least 50% of the trust interests in the trust are foreign interests (U and V collectively holding 75% of the interests in the trust).
J, K, L, M and N are all 20% shareholders in Multicorp Pty Ltd. J, K and L are Australian. M and N are foreign, but unrelated to each other. L is related to M. J, K and N are not related to any other shareholders. Multicorp Pty Ltd is a foreign company because the interests of L (related to a foreign person), M (foreign person) and N (foreign person) total 60%.
Commissioner of State Revenue
Date of issue: 1 July 2019
|Public Ruling||Issued||Dates of effect|
|LTA000.3.1||1 July 2019||30 June 2019||Current|