Residency for companies and trusts post-Bywater – 5th Victorian Annual Tax Forum

Dr Julianne Jaques CTA
Since the High Court handed down its decision in Bywater in late 2016, there has been much debate about the residency status of the offshore entities of Australian residents.

Dr Julianne Jaques CTA was counsel for the Commissioner in the Bywater matter from the seven-week trial at first instance through to the High Court appeal. She notes that “there are mixed views about the impact of Bywater – whether it changes the test of corporate residency forever, or whether it is an unsurprising decision peculiar to its facts.”

Julianne will be one of the presenters at the upcoming 5th Victorian Annual Tax Forum. Here she tells us a little more about the case and her session at the Forum: ‘Residency for companies and trusts post-Bywater.

As one of nine sessions in the Forum’s dedicated Hot Topics stream, Julianne’s presentation will outline the High Court’s decision in Bywater, as well as covering the status of Esquire Nominees Ltd v FCT (1973) 129 CLR 177 after Bywater; Taxation Ruling 2017/D2, and the lessons from Bywater for ensuring foreign subsidiaries remain non-resident. 

Julianne told us: “I’ll be unpacking the decision a bit, exploring exactly what the High Court said, and considering what long-term impacts the decision might have. I’ll also give a few insights into the Bywater story from the perspective of someone who travelled each step of the journey along the road to a final decision.”

“Hopefully delegates will come away with not only a greater understanding of the Bywater decision, but also the current thinking on when the central management and control test is met, and when it isn’t – from the perspectives of both the ATO and the private sector. This might be of particular interest to those involved with foreign subsidiaries that have been treated as non-residents in the past. Has the status quo changed, or does it remain the same?”

For the last 15 years, Julianne has been a barrister practising mainly in tax. 

“I had a prior life as a solicitor with Freehills, and before that as a chartered accountant with Coopers & Lybrand (the name alone dates me),” she joked. 

“I also spent two years as senior tax adviser to the Federal Assistant Treasurer during the introduction of GST and Business Tax Reform. It was around this time that I undertook my doctorate – in tax, of course – at the University of Melbourne. Recently, I’ve been combining my work at the Bar with part-time appointments to the Tax Practitioners Board and the Board of Taxation.”

Julianne joined The Tax Institute in 1995, just after qualifying as a Chartered Accountant.

“I’ve always worked in tax," she said. "I enjoy the mix of law, accounting, finance and policy, and the challenge of working in an area where every case is different. I still recall, soon after joining The Tax Institute as a member, being struck with the realisation that (through the Institute) I now had access to, and could learn from and mix with, the leaders of our profession.”

Taking place over two days, the 5th Victorian Annual Tax Forum will offer a mix of plenary sessions across three distinct streams – Corporate, Private Clients and Hot Topics.

This year’s Forum will include sessions that cover:
  • Tax administration and the challenges faced by participants in the tax system
  • Engagement with the ATO, including dispute resolution
  • M&A and case updates
  • Cross-border tax issues, including BEPS, MAAL, DPT and transfer pricing
  • The revenue/capital dichotomy
  • Part IVA
and much more.
Join us 12-13 October 2017 at the InterContinental Melbourne. You can find out more about the program on our website.


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