Australian Agent for an Offshore Company

For income tax and goods and services tax (GST) purposes, it is important that non-residents of Australia , for example an offshore company, cannot be treated as carrying on business in Australia .

Offshore companies, such as Labuan companies may use independent agents in Australia to retain their non-residency status for Australian income tax and GST purposes.

In a recent draft GST ruling (GSTR 2002/D8), the Commissioner of Taxation considers that a non-resident company is “in Australia ” if:

(i) it carriers on business through a place of its own or through an agent acting on its behalf; and
(ii) that place of business or agent has a fixed and definite place in Australia ; and
(iii) that place of business or agent has a fixed and definite place in Australia ; and

In determining whether an agent is carrying on business of the non-resident company that it represents, we believe the following factors described in the English case Adams and others v Cape Industries plc and another [1991] 1 All ER 929 are relevant to consider.

1. Whether or not the fixed place of business from which the agent operates was originally acquired for the purposes of enabling the agent to act on behalf of the non-resident company.
2. Does the non-resident company directly reimburse the agent for:
  (a) the cost of accommodation at the fixed place?
  (b) the cost of staff?
  (c) what other contributions, if any, does the non-resident company make to the financing of the business carried on by the agent?
3. Is the agent remunerated by reference to transactions, for example by commission, by fixed regular payments or in some other way?
4. What degree of control does the non-resident company exercise over the running of the business conducted by the agent?
5. Whether or not the agent reserves part of his or her staff and/or accommodation for the conducting of business related to the non-resident company.
6. Whether or not the agent displays the name of the non-resident company at his or her premises or on stationery and, if so, whether it indicates he or she is an agent of the company.
7. What business, if any, does the agent transact as principal exclusively on his or her own behalf?
8. Whether or not the agent makes contracts with customers or other third parties in the names of the non-resident company or otherwise in such a manner so as to bind it.

The Commissioner has expressed the view in GSTR 2002/D8 that if the agent has the authority to make binding contracts on behalf of the non-resident company, this is a powerful indicator that the non-resident company is carrying on business through the agent. However, where the agent does not have power to contract but many of the above factors outlined above are found and the activities of the agent form part of, and a substantial part of, the business operations of the non-resident company, then the Commissioner will still consider the non-resident company to be carrying on business in Australia .