7Meaning of enterprise of a country or region

7 Meaning of enterprise of a country or region

Enterprise of a country (1) An enterprise of a country is: (a) an entity (within the ordinary meaning of the term) of a kind mentioned in subsections (2) to (4); or (b) a branch of an entity (within the ordinary meaning of the term) mentioned in subsection (5); that is not excluded under subsection (6). Enterprise of a region (1A) An enterprise of a region is: (a) an entity (within the ordinary meaning of the term) of a kind mentioned in subsections (2) to (4); or (b) a branch of an entity (within the ordinary meaning of the term) mentioned in subsection (5A); that is not excluded under subsection (8) or (9). Entity of a country or a region (2) The entity is constituted or organised under a law of the country or a law of the region.

Note: For references to a law of the United States of America or China, see sections 9 and 9A.

(3) The form in which the entity may be constituted or organised may be, but is not limited to, any of the following forms: (a) a corporation; (b) a trust; (c) a partnership; (d) a sole proprietorship; (e) a joint venture; (f) an unincorporated association. (4) It is immaterial whether the entity: (a) is carried on for profit; or (b) is owned or controlled privately. Branch of an entity of a country (5) A branch of an entity (within the ordinary meaning of the term) is an enterprise of a country if: (a) the entity is not described in subsections (2) to (4); and (b) the branch is located in the country; and (c) the branch is carrying on business activities in the country: (i) in a way other than being solely a representative office; and (ii) in a way other than being engaged solely in agency activities, including the sale of goods or services that cannot reasonably be regarded as undertaken in the country; and (iii) by having its administration in the country. Branch of an entity of a region (5A) A branch of an entity (within the ordinary meaning of the term) is an enterprise of a region if: (a) the entity is not described in subsections (2) to (4); and (b) the branch is located in the region; and (c) the branch is carrying on business activities in the region: (i) in a way other than being solely a representative office; and (ii) in a way other than being engaged solely in agency activities, including the sale of goods or services that cannot reasonably be regarded as undertaken in the region; and (iii) by having its administration in the region. (5B) For the purposes of working out under subsection (5A) whether a branch of an entity is an enterprise of Hong Kong, China, subsection (5A) applies as if: (a) paragraphs (5A)(a) and (c) were omitted; and (b) subsection (5A) also required the entity to be of a kind mentioned in subsections (2) to (4) for Hong Kong, China. When entities or branches are not enterprises of a country (6) An entity, or a branch of an entity, (within the ordinary meaning of the term) is not an enterprise of a particular country if the Treasurer is satisfied that: (a) it is owned or controlled by one or more persons of another country; and (b) any one or more of the following applies: (i) Australia does not maintain diplomatic relations with the other country; (ii) Australia adopts or maintains measures relating to the other country or a person of the other country that have the effect of prohibiting transactions with the entity or branch; (iii) the entity or branch has no substantial business activities in the particular country. (7) Without limiting subsection (6), an entity, or a branch of an entity, (within the ordinary meaning of the term) is not an enterprise of China if the Treasurer is satisfied that: (a) it is owned or controlled by one or more of the following: (i) an individual who is usually resident in the territory of a relevant World Trade Organization member; (ii) an entity that is constituted or organised under a law of a relevant World Trade Organization member; and (b) the entity or branch has no substantial business activities in China. When entities or branches are not enterprises of a region—general (8) An entity, or a branch of an entity, (within the ordinary meaning of the term) is not an enterprise of a particular region of a country if the Treasurer is satisfied that: (a) it is owned or controlled by one or more persons of another country; and (b) any one or more of the following applies: (i) Australia does not maintain diplomatic relations with the other country; (ii) Australia adopts or maintains measures relating to the other country or a person of the other country that have the effect of prohibiting transactions with the entity or branch; (iii) the entity or branch has no substantial business activities in the particular region; and the particular region is not Hong Kong, China. When entities or branches are not enterprises of a region—Hong Kong, China (9) An entity, or a branch of an entity, (within the ordinary meaning of the term) is not an enterprise of Hong Kong, China if the Treasurer is satisfied that: (a) subsection (10) applies to it; or (b) the entity or branch has no substantial business activities in Hong Kong, China. (10) This subsection applies to an entity or branch if: (a) it is owned or controlled by one or more of the following: (i) an individual of a country who is not a resident of Hong Kong, China; (ii) an entity constituted or organised under a law of a country that is not a law applying in Hong Kong, China; and (b) Australia adopts or maintains measures relating to that country, or a person of that country, that have the effect of prohibiting transactions with the entity or branch.