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Journal of the Australian Petroleum Production & Exploration Association (APPEA)

Australian taxation of offshore hubs: an examination of the law on the ability of Australia to tax economic activity in offshore hubs and the position of the Australian Taxation Office

Martin Fry
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Allens, 101 Collins St, Melbourne, Vic. 3000, Australia. Email:

The APPEA Journal 57(1) 49-63
Accepted: 7 April 2017   Published: 29 May 2017


The obvious commercial benefits of centralising operational functions mean that commercial ‘hubs’ within multinational enterprises will continue to proliferate. More and more so, this will create challenges for the revenue authorities of the high tax jurisdictions such as Australia and the United States, and also the ‘hub-destination’ jurisdictions such as Singapore. For the Australian revenue authority, the challenges are heightened by the fact that the Australian public debate on these issues occurs, it seems, within a framework of suspicion that multinational enterprises set about to avoid paying their ‘fair share’ of tax.

As there is ultimately only one value chain spread across more than one tax jurisdiction – whether that be from the hydrocarbons under an Australian sea bed through to a customer sale in North Asia, or the purchase of crude in Singapore through to a point of retail distribution in Australia – it is essential that the tax laws arrive at an international organising principle that fairly allocates taxing rights between the tax jurisdictions affected by a global value chain. Double taxation will arise and economic efficiencies will be destroyed if multiple tax jurisdictions seek to tax the same parts of the single global value chain. That organising principle should be the ‘arm’s length principle’, the fundamental basis upon which Australia enters into double tax treaties with its trading partners.

This paper analyses the manner in which the Australian tax laws attempt to deal with the advent of offshore centralised hubs. It argues that the Australian tax laws overreach and, as such, create an environment for double taxation and dispute between competing revenue authorities and between revenue authorities and multinational enterprises. The tax laws are complex, incomplete and, at the time of writing, evolving at a speed not often witnessed in the field of taxation.

Keywords: arm’s length conditions, arm’s length principle, attributable income, controlled foreign companies, diverted profits tax, double tax agreement, economic double taxation, Hubs Paper, insufficient economic substance, mutual agreement procedure, permanent establishment, transfer pricing.

Martin Fry is head of the Tax Group at Allens. He has over fifteen years of experience advising foreign and Australian-owned groups in the resources sector, which in recent years has entailed extensive involvement in transfer pricing and exploration matters. Martin’s recent work has been at the forefront of the development of law and strategy in relation to the taxation of centralised hubs located offshore and in Australia. Martin is a Fellow of The University of Melbourne Law School, where he lectures in the post-graduate Taxation of Major Projects course.



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