Australia: Harmonisation of the Anti-Deferral Regimes

Abstract

Australia has four anti-deferral regimes applicable to Australian residents that have interests in foreign entities. The regimes are (i) the controlled foreign companies (CFC) regime, (ii) the foreign investment fund (FIF) regime, (iii) the transferor trust regime, and (iv) the deemed present entitlement rules. The legislation enacting these regimes is among the most detailed and complex tax legislation in Australia. The regimes are not well coordinated, particularly the border between CFCs and FIFs, and the treatment of foreign trusts. They have different exemptions creating incentives for taxpayers to prefer one regime over another. The broad design of Australia's CFC rules largely follows that developed in pre-globalisation times, particularly by the United States and Canada. It is argued that the design does not adequately take account of the nature of the global economy today. The Australian Government has asked the Board of Taxation to, inter alia, examine ways in which the anti-deferral regimes can be better harmonised. This paper outlines the historical development of Australia's anti-deferral regimes and offers proposals for harmonisation.

Keywords: Active income exemption, Base company income, CFC, Comparable tax exemption, Deemed present entitlement rules, Deferral, FIF, Foreign trusts, Passive income, Transferor trusts

JEL Classification: E62, H20, H25, K34, K10, K22