Carrying on business (in the context of the Corporations Act)

Generally speaking, when an entity ‘carries on a business’ they engage in regular business activities. In Australia, case law has developed what are known as ‘indicia’ that indicate whether an entity ‘carries on a business’.

Some of these indicia include:

  • Business activities continue as a going concern
  • Intention to make a profit
  • The business activities are repetitive
  • Books and records are kept and maintained

Pursuant to section 21 of the Corporations Act 2001 (Cth) a body corporate that has a place of business in Australia, carries on a business in Australia.

Pursuant to section 21(2) a body corporate carrying on a business in Australia, includes the body:

  1. Establishing or using a share transfer office or share registration office in Australia; or
  2. Administering, managing, or otherwise dealing with, property situated in Australia as an agent, legal personal representative or trustee, whether by employees or agents or otherwise.

Despite the above referenced circumstances where a body corporate is deemed to carry on a business, the Corporations Act 2001 (Cth) also outlines circumstances that in and of themselves do not indicate that a body corporate carries on a business in Australia, or in a State or Territory, as the case may be. Some of these circumstances, pursuant to section 21(3) of the Corporations Act 2001 (Cth), are:

  • A company becomes a party to proceedings or settles a claim;
  • Director or shareholder meetings held in Australia;
  • Maintains an Australian bank account;
  • Creates evidence of a debt or security interest in property in Australia;
  • Secures or collects any of its debts or enforces its rights in regard to any securities relating to such debts.
  • Conducts an isolated transaction that is completed within a period of 31 days, not being one of number of similar transactions repeated from time to time; or
  • Invests any of its funds or holds any property.

If a foreign company (i.e. a body corporate in an external Territory, or outside Australia) carries on a business in Australia they are required to be registered with the Australian Securities and Investment Commission (ASIC). If a foreign company fails to register with ASIC, they risk committing an offence under Australian law.

Further to the indicia referred to above, Draft Taxation Ruling TR 2017/D7 outlines other instances where a company may carry on a business (in the context of section 23AA of the Income Tax Rates Act 1986 (Cth)). Some of these are set out below.

  • The nature of a company’s activities and whether they have a purpose for profit (i.e. the increased commercial nature of conduct will increase the likelihood of a company carrying on a business);
  • Purpose and prospect of profit – the ruling states that whether a company’s activities have a purpose and prospect of profit is critical in determining whether it is carrying on a business.
  • Intention to carry on a business – when a company intends to make a profit they are presumed to be carrying on a business.
  • Repetition and regularity – the degree of repetition and regularity of a company’s activities will be relevant when determining whether a company carries on a business.
  • Single act or transactions – these may amount to carrying on a business if they are intended to be repeated.
  • Organisation of activities in a systematic and business-like manner
  • Size and scale of a company’s operations