Foreign owned companies registered in Australia
If those financial statements are prepared under the company’s home jurisdiction laws, those accounts can be filed with the Australian corporate regulator, the Australian Securities and Investments Commission (ASIC). However, if the form of accounts is not satisfactory to ASIC, ASIC can require the company to prepare and file amended accounts. Even if the company is not required by the laws of its home jurisdiction to prepare and file financial statements, it will still be obliged to file financial statements in Australia. ASIC may require financial statements to be audited. This need to file statements in Australia can place onerous burdens on foreign owned companies.
ASIC relief – the Order
In our December 2017 insights, we discussed relief that may be available to foreign owned Australian small proprietary companies from filing accounts pursuant to Part 2 of the ASIC Corporations (Foreign-Controlled Company Reports) Instrument 2017/204 (the Order). Under Part 3 of the Order, relief from filing financial statements in Australia may also be available to registered foreign companies in the circumstances specified in the Order.
In order to obtain relief from filing financial reports, all of the following must apply:
the foreign company must be registered under Part 5B.2 of the Corporations Act;
in its home jurisdiction, the company must be subject to similar restrictions as apply to Australian proprietary companies;
the foreign company is not required by its home jurisdiction laws to prepare a balance sheet, a profit and loss statement and a cash flow statement for its last financial year;
the company’s shares are not listed on an official market and the company is not a borrower in relation to a debenture or a guarantor of such a borrower;
the company satisfies at least 2 of the small proprietary company tests;
the company is not part of a large group or the company was consolidated in financial statements that were lodged with ASIC by another company eg a holding company.
If a foreign company complies with the above requirements and provided that ASIC has not notified it that it cannot rely on the relief under the Order, then the foreign company will be relieved of the obligation to file annual financial statements.
If a registered foreign company is not entitled to relief under the Order, then it must file its financial statements at least once in every calendar year and at intervals of not more than 15 months. If the foreign company does not file its financial statements or does not comply with a notice from ASIC to file accounts in an amended format, the company will be in breach of the Corporations Act.
We recommend that foreign companies registered in Australia check to ensure that they are complying with their filing obligations. A breach of the Corporations Act arising from the non-filing of financial statements when relief under the Order is not available, cannot be cured by subsequent filing. If foreign companies identify a non-compliance, they should seek legal advice about addressing the issue and dealing with ASIC.
Contact Brett Cowell for more information.