Holden Sydney

The use of tax havens in day to day business life has grown to be almost mainstream these days. To the small businessman and the private investor, the use of tax havens still probably seems a little shady.

This shouldn’t be the case any more as the use of tax havens to reduce tax or just defer it for a while is now accepted practice all over the world with many of the largest Australian accounting and audit firms having departments advising major corporations how to structure their operations offshore.

Tax havens have a strong appeal for many multi-national companies established in foreign countries because of the advantages they offer for the legitimate reduction or deferment of taxation on certain profits earned offshore. Profits harboured in a tax haven enable working capital to be used in the cheapest way possible.

Traditionally, the tax haven has been used as a central point for handling paperwork and preparing and processing international trade documents. Many companies utilise tax havens for the passage of title of goods, so these transfers can proceed without the need for mountains of regulations and fees.

Tax havens are also popular as places to administer patent, trademark and royalty agreements. Because of the intangible nature of patents, trademarks and royalty agreements, they are easily moved from one jurisdiction to the other and the cost of doing this is very low in tax haven jurisdictions.

For instance, if a company with branches and subsidiaries overseas is a resident of a country with strict foreign exchange regulations, it may not want to repatriate the profits simply because if it did, it may have problems being able to transfer the funds back out if it wanted to reinvest them offshore. To solve this problem, it establishes a foreign intermediate holding company in a tax haven, not for tax reasons, but to avoid the foreign exchange control problems that its own country has imposed.

By simply interposing a tax haven company in a corporate structure does not result in the reduction of onshore taxes in most cases, but it may allow tax deferral. Eventually, the parent company will receive the income and when it does it will be taxable and possibly without the benefit of foreign tax credits that may have been available had the profits been repatriated from a tax treaty country. Most tax havens don’t have tax treaties with major countries such as Australia, which prevents the favourable use of lower withholding taxes that would have been available had the country been a signatory to a tax treaty.

Offshore Licencing and Patent Holding Companies

Royalties or licence fees can be, in certain circumstances, can be feed of tax obligations by using an offshore licensing company. For instance, the owner of a patent can incorporate an offshore licensing company and assign the rights to that offshore company. In turn the offshore company then has the right to licence the patent to a foreign subsidiary. By having the royalties paid to the licensing company in a tax haven, profits are effectively shifted from the foreign subsidiary to the offshore patent owning company, which pays little or no tax on the royalties that it receives.

Income from other intangible rights, such as trade marks, copyrights, know how and franchising rights, can be earned without incurring withholding or income tax if a tax haven company is established to sublicence other companies in various countries. Tax savings can be made also on patent royalties by combining tax havens.

Australia only deducts 10% withholding tax on Dutch companies. Therefore, if a tax haven company was established in the Netherlands Antilles with a Dutch subsidiary, and licences its Dutch patents to the Dutch company, the Dutch company, in turn, can licence to the Australian manufacturer.

The Australian company can then pay the Dutch subsidiary patent royalties incurring only 10% tax. The Dutch company can then pay the royalty to the tax haven company (which is the patent owner), thereby avoiding Dutch withholding taxes on dividends. The Dutch company is not taxed in the Netherlands, and the tax haven company avoids any further taxation. Total tax is 10%.

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