• Introduction 背景介绍

Foreign investors in Australian entities may be unaware that in some circumstances the Australian Taxation Office (ATO) can assess them for Australian tax on gains made from the sale of their investment. The circumstances in which tax can arise are described in this article. In addition, law changes are proposed which (amongst other matters) would, from 1 July 2016, require purchasers to withhold 10% from the purchase price and pay that to the ATO in some circumstances.

投资澳大利亚实体的外国投资者可能并不了解,在某些情况下,澳大利亚税务局(“澳大利亚税务局”)是可以就他们转让投资所获利得征税的。本文即对需要征税的情况做了一个介绍。此外,根据澳大利亚法律修订建议的其中一项建议,自2016年7月1日起,在某些情况下,外国投资者对澳大利亚实体投资的受让方需要代扣转让价格的10%上缴澳大利亚税务局。

If such an assessment is issued, the ATO also has powers to collect that assessment, including to garnish or freeze the proceeds of sale to satisfy the assessment before those proceeds are remitted offshore. In our experience, the ATO issuing such assessments and garnishee notices has become more common, and foreign resident investors are not always aware how to react to and , some cases, how to challenge those assessments.

如果澳大利亚税务局发出征税通知,则其也有权收取税款,包括在转让收益汇往海外之前扣押或冻结税款对应的金额。根据我们的经验,澳大利亚税务局通知征税和扣押款项的情况现在越来越普遍,但外国居民投资者却并不清楚应当如何应对,以及在适当的情况下,应当如何提出征税异议。

This article describes in general terms when such Australian tax could arise, and, if an assessment does arise to a foreign investor, how to deal with it.

本文大致介绍了需要在澳大利亚纳税的情况,以及在需要纳税时外国投资者的应对之策。

  • Example used in this article

举例介绍

For the purposes of simplicity, this article will refer assessments arising for non-Australian resident shareholders in Australian companies and operates from a basic example of a non-Australian resident shareholder holding shares directly in an Australian company. We have operated from that basic example because the most common assessments we have assisted non-Australian resident clients with have arisen as a result of a sale of shares in an Australian company.

为方便起见,本文将主要介绍澳大利亚公司非澳大利亚居民股东的纳税情况,并主要以直接持有澳大利亚公司股权的非澳大利亚居民股东为例展开分析。之所以选择以此为例,是因为我们协助非澳大利亚居民客户处理得最多的纳税问题就是在出售澳大利亚公司股权时产生的纳税问题。

However, it should be noted that:

但是,应当注意的是:

  1. tax can arise on gains made from the disposal of investments in other entities, including particular kinds of trust; and

处分对其它实体,包括特定类型的信托的投资所获得的利得也可能引起纳税问题;以及

  1. gains from a sale of shares in a holding company, which in turn holds shares in an Australian resident company, can, in some circumstances attract Australian tax.

转让持有澳大利亚居民公司股权的控股公司股权所获得的利得在有些情况下也需要在澳大利亚纳税。

  • When the ATO can assess Australian tax

澳大利亚税务局在什么情况下可以征税

There are two main requirements before any tax can arise. The two requirements test that the non-Australian resident shareholder holds a substantial interest in the Australian company, and (in broad terms) that more than 50% of the market value of the Australian company's assets arises from Australian real property assets.

Non-portfolio interest test

非组合权益条件

The first requirement tests that the non-Australian shareholder has a substantial interest in the Australian company. The requirement is that the non-Australian resident shareholder and/or its associates must hold a direct participation interest of 10% or more in the Australian company. This test can also be satisfied if such an interest was previously held for at least 12 months within the past two years.

第一个条件是非澳大利亚居民股东享有澳大利亚公司的重要权益,即��澳大利亚居民股东和/或其关联人必须持有澳大利亚公司10%或以上的直接参与权益。如果在过去的两年里持有澳大利亚公司10%或以上直接参与权益至少12个月的,也算满足这一条件。

A direct participation interest can be shares or a right to acquire shares, or another interest in an Australian company which provides the non-Australian resident shareholder with rights to vote or participate in decision making, or provides rights to capital on winding up of the company. It should be noted that the interests of associates are also captured as part of this test. What is an associate is a detailed definition, but for natural persons, associates include relatives, spouses, and partners for example.

直接参与权益可以是股权或购股权,或非澳大利亚居民股东借以获得澳大利亚公司的投票权、决策参与权或剩余财产分配权的其它权益。应当注意的是,这一条件将关联人的权益也涵盖在内。关联人的定义是非常详细的,但就自然人而言, 关联人包括亲属、配偶和伴侣等

Principal asset test

主要资产条件

The second requirement tests that the underlying value of the Australian company is principally derived from Australian real property. The requirement is that the market value of the taxable Australian real property assets exceeds the market value of the assets that are not taxable Australian real property.

第二个条件是澳大利亚公司的根本价值主要来源于澳大利亚不动产,即应税澳大利亚不动产的市值超过非应税澳大利亚不动产的市值。

Assets that are taxable Australian real property include real property situated in Australia, including a lease of Australian land, mining, quarrying and prospecting rights for minerals, petroleum and the like situated in Australia.

应税澳大利亚不动产包括位于澳大利亚境内的不动产,例如澳大利亚土地租赁权以及位于澳大利亚境内的矿产、石油及类似财产的矿权、开采权和探矿权。

It is only if both of these tests are met that the ATO can issue an assessment.

只有在两个条件都满足的情况下,澳大利亚税务局才可以发出征税通知。

  • What to do if an assessment is issued to you

如何应对征税通知

Often non-Australian resident shareholders are very surprised to receive an assessment from the ATO and take the view that they cannot be subject to Australian tax because they are not resident in Australia. This is not correct. Australian tax can arise on the basis of residence or source.

通常,非澳大利亚居民股东在收到澳大利亚税务局的征税通知后都会非常惊讶,认为自己并不是澳大利亚居民,应该不需要在澳大利亚纳税。这种想法是不正确的。澳大利亚可以按照居住地和收入来源地征税。

To keep your rights alive if an assessment is received from the ATO you first need to seek advice from an experienced tax practitioner. Following that, you will need to either take steps to try and resolve and settle the matter with the ATO, and/or file an objection with the ATO within a fixed time period. The objection time period can vary depending upon the underlying circumstances of the taxpayer, and can be 60 days, 2 years or 4 years. The usual course is to seek to do both – both file an objection and seek a resolution of the matter with the ATO.

如果收到澳大利亚税务局的征税通知,您首先要做的是咨询有经验的税务律师,以保障自己的权利;之后要努力尝试与澳大利亚税务局共同协商解决这个问题,并且/或者在要求的期限内向澳大利亚税务局提出异议。由于每个纳税人的基本情况不同,所以适用的异议期也会不同,可以是60天、2年或者4年。通常的做法是双管齐下——提交异议和与澳大利亚税务局协商解决同时进行。

An objection needs to set out all of your grounds for objecting, as you will be limited to those grounds in any dispute that goes forward. This means it is important to obtain Australian tax advice and for the tax practitioner you engage to carefully formulate those grounds of objection.

异议书要详尽罗列所有的异议理由,因为之后有任何争议的话,您只能在这些理由的范围内进行抗辩。因此,咨询澳大利亚税务律师,让税务律师帮您仔细拟写异议理由是非常重要的。

Commonplace issues that arise include:

常见问题包括:

  • The ATO considering persons to be associates when they are not – this is for the purposes of the non-portfolio interest test described above. If association does not arise, and as a result a less than 10% participation interest is held by the taxpayer, the entire assessment falls away.

澳大利亚税务局把没有关联关系的人看作互为关联人——这是为了要满足上面所说的非组合权益条件。如果关联关系不存在,导致纳税人持有的参与权益不到10%,则征税整个是不成立的。

The ATO considering the principal asset test to have been passed, without obtaining a valuation of the underlying Australian company, or by making assumptions that certain assets are not counted for the purposes of that test. Often, if this is challenged by way of a competing valuation, this can result in a favourable outcome.

澳大利亚税务局在不对澳大利亚公司估值的情况下就认定满足主要资产条件,或在确定是否满足主要资产条件时,假设某些资产不应计算在内。通常,如果非澳大利亚居民股东能提出与之不同的估值,就有可能获得有利结果。

  • The ATO not taking into account all of the costs incurred by the non-Australian resident shareholder in acquiring the shares in the first place. Often costs other than monetary costs are ignored – for example loan forgiveness, or the contribution of other property in return for shares. It is only the gains on sale that can be potentially taxable so the costs of acquiring the shares can reduce those gains.

澳大利亚税务局不考虑非澳大利亚居民股东最先在购买澳大利亚公司股权时产生的所有成本。通常他们都不计算现金成本以外的成本——例如,放弃债权、其它财产形式的股权对价等。只有转让股权获得的利得才可能需要纳税,所以购买股权的成本是可以从利得中扣除的。

It is important that your arguments on objection are well formulated and supported at law and with documentary evidence. In addition, if additional evidence is sought (such as valuations of the underlying Australian company) care needs to be taken in instructing the valuer, and working with him or her. This means that a tax practitioner who is experienced in dispute management, in formulating evidence and in appearing before the courts should be instructed to assist at an early stage.

指示以及在与评估师接触的过程中务必要谨慎。这也就是说,您应当在早期就聘请一位在纠纷管理、证据链拟定以及诉讼事务上经验丰富的税务律师为您提供协助。

This will provide you with the best chance of succeeding with the ATO on objection or in settlement discussions, or, if the matter progresses further, before the courts.

如此一来,您在与澳大利亚税务局的异议过程中、和解协商过程中,或如果事态进一步恶化,在诉讼过程中,才能增加胜算。