Important CHANGE to Withholding Tax Process
Date posted: Monday, January 28, 2013
Important CHANGE to Withholding Tax Process
PROOF OF IDENTITY
Notwithstanding several submissions made to the Australian Taxation Office (ATO) in association with the accounting firm of Roseby Rosner & Young Pty Ltd, together with support from Live Performance Australia (the peak body representing Australian promoters), overseas performers and sportspeople who contract through a corporation must now have it officially identified to the satisfaction of the ATO – a photocopy of the relevant Certificate of Incorporation (C/I) will no longer be accepted as adequate identification of a foreign corporation, Limited Liability Corporation (LLC), or Limited Liability Partnership (LLP), in Australia for taxation purposes.
Without such registration the ATO will not issue the corporation, LLC, or LLP (foreign entity) with a Tax File Number (TFN). Without a TFN the foreign entity will be unable to file an income tax return so that it may obtain a refund of excess withholding tax deducted from its fee and paid to the ATO by the promoter. Further, a Tax Certificate will not be issued to the foreign entity to evidence those taxes paid in Australia which are eligible to be deducted from the foreign entity’s final domestic taxes in its country of residence (Foreign Tax Credit) in accordance with the Double Tax Agreement between that country and Australia. Effectively, this may lead to a double taxation of the artist’s fee.
The ATO has now advised that it WILL accept a C/I certified under the Apostille process. An Apostille Certificate is an official certificate which is issued so that documents of one member country will be immediately recognised in other countries which are members of the Hague Conference which established this authentication procedure (an HLC country).
The Apostille-authenticated C/I should be received in Australia PRIOR TO the commencement of a tour which involves a foreign entity. PLEASE NOTE THAT THIS NEW REQUIEMENT DOES NOT APPLY TO ARTISTS WHO CONTRACT IN THEIR OWN NAMES (individuals and/or simple partnerships), OR TO AN ARTIST’S ENTITY WHICH HAS PREVIOUSLY BEEN ISSUED WITH A TFN.
For the benefit of all artists who will be affected by this change we set out below details of websites which will facilitate the issue of an Apostille (Certification) with respect to their corporations/LLC/LLP –
USA
https://www.apostille.us – click on ‘Authentication of Documents’ under ‘What services do you need?’. Then click on ‘Certificate of Incorporation’ under ‘Do you need a Corporate document’ and proceed to complete the online application form. It seems that this service will not only provide the Apostille but will retrieve the relevant document rather than require that you send it the original certificate to be authenticated. Please call +1 212 233 7061 to verify this if possible.
UNITED KINGDOM
https://www.apostille.org.uk – click on ‘Order form’ which will take you to ‘Ordering an Apostille’. Further, click onto ‘Download Order Form Now’ and tick ‘Certificate of Incorporation or name change’ under the heading ‘1a. Tier One Standard Apostille – Type of Document’. Then lastly, read and follow the instructions at the foot of the order form. As a C/I is a document which may be certified as Tier 1 Apostille it may not be necessary to provide the company’s original certificate, a copy may suffice – call +44 845 330 2717 to clarify this point.
CANADA
https://www.enterpriselegal.ca – click on ‘Apply Now’ which will take you to the application process, further clicking on ‘order form’. Follow this process through and/or call +1 800 336 1132.
ALL OTHER COUNTRIES
https://www.apostilleinfo.com/
If you have any further queries in relation to this matter please do not hesitate to contact Michael Roseby of this office on +61 3 9823 3366.
ARTIST ESCROW SERVICES PTY LTD