22 February 2021

Dixon: A cautionary case of U.S.-Australian tax issues

Marsha Laine Dungog
Partner | US

This article presents a cautionary tale of cross-border tax compliance complexities for Americans and Australians who file and pay taxes in two countries with different tax regimes. It was originally published in Tax Notes Federal and Tax Notes International on February 8, 2021. Marsha Laine Dungog, tax partner in the Withers San Francisco office, co-authored this article with Tamara Cardan, tax counsel at Rigby Cooke Lawyers in Australia. They thank Charles Kolstad, David Laanemaa and Roy Berg for their comments.

No other movie but Star Wars comes close to explaining the tragic duality and complexity of international tax. It demands more than just a pedantic understanding of civil and common laws, tax regimes, and treaties. It requires mental agility and appetite for the unknown to understand foreign structures and transactions, to unravel their complexities, and to identify their closest kin in the U.S. tax regime. For the most part, the foreign entity classification regulations1 promulgated by Treasury and the IRS over 24 years ago have provided a framework for analyzing these foreign structures and a route for international taxpayers to obtain, by election or default classification, some symmetry in how these structures and transactions are classified, reported, and taxed in their home countries and the United States. The framework is relatively simple to follow: A foreign organization that is recognized as a separate entity for federal tax purposes is either a trust or a business entity.2 A business entity that is not listed as a per se corporation under the regulations3 may elect its classification for U.S. federal tax purposes, if eligible to do so,4 or be subject to default classification either as a disregarded entity separate from its owner, an association taxable as a corporation, or a partnership.5 The treatment as a per se corporation would apply unless the foreign entity filed an election with the IRS for an alternative classification.6

When it comes to the classification of foreign organizations for federal tax law purposes under the foreign entity classification regulations, Australia appears to have drawn the short end of the proverbial stick. This predicament is brought into sharper focus by the pending Tax Court case, Dixon,7 which presents the trifecta of cross-border tax issues between the United States and Australia: classification of dividends from an Australian private limited company, use of franking credits, and treatment of earnings accrued in Australian superannuation (aka super) funds, which are retirement accounts.8 Dixon presents a cautionary tale of cross-border tax compliance complexities experienced every year by Americans and Australians on both sides of the Pacific who file and pay taxes in two countries with different tax regimes.

I. Classification of Australian entities

The foreign entity classification regulations list just one form of Australian entity, a public company, as subject to treatment as a per se corporation for U.S. tax purposes.9 It would therefore appear that a privately owned company such as an Australian proprietary limited company (AusPty) would have some flexibility to elect its treatment for U.S. tax purposes or be subject to default treatment as a disregarded entity, association, or partnership based on the number of its members.10 However, because shareholders of an AusPty have limited liability under Australian corporate law,11 it would be unlikely that an AusPty with one member would be able to elect disregarded entity classification under the U.S. check-the-box regulations.12

An AusPty’s classification as a corporation for U.S. tax purposes has important consequences for both U.S. individuals living in Australia and Australian individuals living in the United States (collectively, U.S. taxpayers) who are shareholders of that company. If the company is classified as a foreign corporation, any Australian franked dividends13 received by a U.S. taxpayer would be included as part of his taxable income for U.S. tax purposes. However, the U.S. taxpayer would be unable to claim foreign tax credits for Australian taxes paid on those dividends (franking credits or imputation credits)14 on his U.S. tax returns. From a U.S. tax perspective, an individual shareholder can claim FTCs for foreign taxes he paid. However, for franked dividends, the AusPty is liable for the payment of taxes on those dividends. A U.S. taxpayer who is an individual shareholder cannot claim FTCs on taxes paid by the AusPty on his U.S. tax returns unless he elects to be treated as a corporate taxpayer.15

To claim the Australian franking credits on the U.S. taxpayer’s federal return (and consequently, reduce U.S. taxes on the franked dividends),16 the AusPty must be classified as a partnership for U.S. tax reporting purposes to achieve pass-through treatment for Australian income, gains, deductions, and credits paid or accrued by the AusPty to its U.S. owner (or as the case may be, the Australian partnership to its U.S. partner).

II. Dixon: A trifecta of lawsuits gone wrong

In 2019 an Australian citizen filed multimillion-dollar lawsuits against the IRS in the U.S. Federal Court of Claims and the Tax Court to dispute specific adjustments proposed by the IRS regarding dividends received from an Australian private company.17 The petitioner, Alan Dixon, a U.S. resident since 2014, was the managing director and CEO of Dixon Advisory Group US (DAG-US), an urban luxury home rental business based in New York City and New Jersey.18 He was also a shareholder, managing director, and CEO19 of DAG-US’s Australian parent company, Dixon Advisory Group Proprietary Ltd. (DAGAustralia).20

DAG-Australia, known as “Australia’s most high-profile promoter of self-managed super funds”21 was a Canberra-based asset management and financial advisory firm that in 2017 merged with Evans & Partners,22 a high-end stockbroking firm based in Melbourne. The merger produced Evans Dixon,23 an AUD 18 billion24 financial services firm that listed on the Australia Securities Exchange (ASX) in May 201825 as a public company.26 It was the fourth-largest self-managed superannuation fund (SMSF) provider in the country.27 Both Alan Dixon and his father, Daryl Dixon, were on its investment committee. It was reported by the Australian news media that the investment committee recommended that its 4,700 SMSF clients invest in the U.S. Masters Residential Property Fund (URF), the biggest in-house Dixon investment28 that was listed as a closed-end fund on the ASX in 2012. At that time, a strong Australian dollar made investing in U.S. assets attractive, with the U.S. dollar and U.S. property market weak.29 The URF manages more than 600 homes in New York and New Jersey30 that constitute distressed and not-so-distressed residential properties in those states.31 It was reported that URF “loaded up on debt to amass a billion-dollar portfolio of New York and New Jersey real estate, charging hundreds of millions of dollars in fees and renovation costs along the way.”32 By the time the U.S. lawsuits were filed, the URF had fallen 90 percent in value over five years.33 And along with it were the superannuation investments of middle-class Australians with reasonable wealth accumulated over decades in white-collar professions.34

A. Dixon’s U.S. tax woes

Dixon appeared to be waging war on both sides of the Pacific Ocean. His company, Evans Dixon, was subject to Australian regulatory scrutiny concerning its dealings with the URF and the Australian clients who invested their superannuation monies in it. In the United States, he was subject to an IRS examination of his amended U.S. tax returns that claimed, among other things, entitlement to FTCs on Australian taxes paid by DAG-Australia on franked dividends issued to him.35

His first tax problem was that he received dividends from DAG-Australia that were subject to U.S. tax without any FTC entitlement for franking credits attached to those dividends. His original U.S. returns for tax years 2013, 2014, and 2015 as initially prepared and filed by Ruhel Dalvi36 at PwC-Sydney did not claim franking credits attached to the franked dividends he received.37 As a result, he paid approximately
$658,985 in federal income taxes for 2013, and $2,131,553 for 2014.38 His original U.S. tax returns for 2015 reported $6,527,412 in franked dividends received as a shareholder39 of DAG-Australia for tax year 2015 with approximately $2,388,627 of attached franking credits that he could not claim.40 Instead, the franked dividends were classified as qualified dividends and subject to U.S. income tax at a rate of 20 percent.41 As a U.S. individual taxpayer, he could claim only foreign taxes that he directly paid or accrued as FTCs against his U.S. tax liability.

Next, Dixon was the beneficial owner of four SMSFs in Australia that were accruing earnings that were already subject to tax in Australia at a preferential rate of 15 percent. This tax was paid by the SMSFs directly and not by Dixon. Neither was he subject to Australian income tax on the earnings accrued in these funds. There is nothing equivalent to a superannuation fund in the United States. However, it is a widely held view among tax practitioners that an SMSF, which is a type of super, would be treated as a foreign grantor trust under the foreign entity classification regulations. By implication, the SMSF itself would be subject to reporting on Form 3520-A, “Annual Information Return of Foreign Trust With a U.S. Owner,” and earnings accrued within the fund would constitute taxable income to the U.S. taxpayer who is a beneficial owner, and therefore subject to U.S. tax at ordinary rates. Moreover, investments by the SMSFs in foreign corporations that constituted passive foreign investment companies for U.S. tax purposes would be subject to reporting on Form 8621, “Information Return by a Shareholder of a Passive Foreign Investment Company or Qualified Electing Fund.”

PwC-Sydney reported Dixon’s proportional share in the earnings accrued in his SMSFs as part of his U.S. taxable income. This filing position combined with the unclaimed franking credits resulted in quite a substantial U.S. tax bill for Dixon (or anyone for that matter) to pay.

Drumroll please: Enter John Anthony Castro, an international tax attorney42 and founder of Castro & Co. LLC.43 For years, Castro has issued legal opinions44 and filed tax returns for U.S. citizens living in Australia who excluded their supers’ earnings from U.S. taxable income.45 Castro was no stranger to Dixon, DAG-US, or Evans Dixon because Castro had a contract with Alan Dixon and DAG-Australia for various tax-related services and ongoing tax advice.46 Indeed, Castro provides many employees of DAG-Australia with individual tax planning or tax compliance work.47 It probably should have come as no surprise that sometime in early 2016 Castro replaced PwC-Sydney as Dixon’s U.S. tax return preparer and representative.48

Castro’s first move was to file an application with the IRS to obtain a U.S. employer identification number for DAG-Australia.49 Although DAG-Australia filed corporate tax returns in Australia and was classified as a corporation under Australian law, Castro classified DAG-Australia as a foreign partnership with 50 partners when he filed the Form SS-4, “Application for Employer Identification Number (EIN),” with the IRS. Doing so would solve the FTC issue for Dixon. Interestingly, Castro appears to have taken the position that the EIN filing, by itself, somehow effectuated an election under the foreign entity classification regulations for DAG-Australia to be classified as a partnership.50 A partnership classification would cause the dividends to be reclassified as business income to Dixon, and he would be able to claim FTCs for Australian franking credits attached to the franked dividends that were paid by DAG-Australia.51 Indeed, Castro claimed that when the IRS approved the EIN application to be classified as a foreign partnership on February 9, 2019, it also approved Castro’s classification of DAG-Australia as a foreign partnership retroactive to DAG-Australia’s date of formation on May 30, 1986.52 The IRS denies this allegation.53 In this regard, we note that entity classifications require the filing of a Form 8832, “Entity Classification Election,” rather than a Form SS-4.54 Further, the preamble to the foreign entity classification regulations states that, “No election, whenever filed, will be effective before January 1, 1997.”55

Castro amended Dixon’s U.S. tax returns for 2013,56 2014,57 and 201558 to claim the FTCs on Australian franking credits attached to the franked dividends received by Dixon. His multimillion-dollar U.S. tax liability was now a multimillion-dollar tax refund of approximately $3,268,930.59

B. The lawsuits

1. The Court of Federal Claims refund actions

Rather than approving Dixon’s amended returns, the IRS issued a notice of deficiency assessing additional taxes, interest, and penalties on his amended 2013 tax return60 and commenced an examination of his 2014 amended return.61 The IRS also seized the tax refund claimed on his 2017 federal return to cover his additional tax liabilities for 2013.62 Castro, acting for Dixon, sued the IRS in the U.S. Court of Federal Claims to recover the 2013 and 2014 tax refunds.63 He sought a refund of $326,985.96 for the 2013 tax year and $1,588,653 for the 2014 tax year on grounds that Dixon is entitled to take FTCs on taxes paid by DAG-Australia on the franked dividends he received.64 In doing so, Castro was trying to get a dollar-for-dollar credit for franking credits attached to the dividends that Dixon never paid for.

2. The Tax Court protest

Three days after Dixon filed his lawsuit, the IRS commenced an examination of the 2015 amended tax return and requested his consent to extend the tax assessment period pending the examination.65 Dixon refused, so the IRS issued an examination report proposing adjustments to his 2015 amended tax returns and advised Dixon and Castro that a notice of deficiency would be issued for additional tax, interest, and penalties due of $1,490,948,66 for a total corrected tax liability of $2,091,916.67 The notice of deficiency was dated April 30, 2019.68 Castro protested the assessment and filed a petition for Dixon with the Tax Court on July 25, 2019.

On February 21, 2020, almost a year since the filing of the lawsuits, Judge Richard A. Hertling of the Court of Federal Claims granted the IRS’s motion to dismiss on a technicality Dixon’s lawsuit to recover his 2013 and 2014 tax refunds. The court held that Dixon did not personally sign nor submit a valid power of attorney for Castro to sign his 2013 and 2014 amended returns.69 Consequently, the court did not have jurisdiction over the lawsuit and dismissed Dixon’s complaint. Incredibly, Australian newspapers erroneously reported the dismissal of the lawsuits as a substantive win by Castro, proving that Australian super funds were foreign social security.70

C. IRS plot twist

Unlike with the refund lawsuits filed in the Court of Federal Claims, the IRS did not file any motion to dismiss the Tax Court petition contesting the notice of deficiency issued for Dixon’s amended 2015 tax returns. In a plot twist of epic magnitude, the IRS sought to amend its answer to the original petition and seek an increased tax deficiency for SMSF earnings that were excluded from Dixon’s U.S. taxable income as privatized foreign social security.71 The IRS reasoned that Dixon had neither identified nor substantiated any social security or other public pension payments that he received from Australia during 2015, and therefore was not eligible to claim a benefit under the Australia-U.S. tax treaty.72 In its amended answer, the IRS identified Dixon’s interests in three SMSFs that had generated taxable income in 2015 that he failed to report as taxable income on his returns.73

The case was set for trial on September 28, 2019.74 However, pending resolution of the motion to stay proceedings, the case was sent to the IRS Independent Office of Appeals sometime in early February 2020. Because of the pandemic’s effect on the operations of Appeals, an Appeals officer had not been assigned as of July 27 when both the IRS and Dixon filed a joint motion for continuance,75 which was granted two days later.

Sometime around August 27, 2020, Dixon disposed of all his shares in Evans Dixon that were held through his Australian private company for approximately AUD 18.6 million.76 A week later, on September 4, the Australian Securities and Investment Commission (ASIC), one of several government agencies with oversight over super funds, filed a multimillion-dollar Australian Federal Court claim action77 against Dixon Advisory & Superannuation Services, a wholly owned subsidiary of Evans Dixon, alleging Dixon Advisory failed to act in its clients’ interests or provide appropriate advice in recommending investments as it purportedly steered its clients to invest in its largest fund, URF.78 Later that month, Dixon left the United States and resumed residence in New South Wales, Australia.79 In November 2020 the shareholders of Evans Dixon voted to approve the rebranding of the company from Evans Dixon to E&P Financial Group.80

III. Classifying superannuation funds

Even if the worst-case scenario were to play out in the U.S. Tax Court for Dixon, it would still not come close to the massive financial losses suffered by DAG-Australia’s clients, a majority of whom are middle-class Australians in white-collar professions with reasonable wealth accumulated over decades in superannuation investments. The super industry is a significant player in the Australian retirement scheme, with superannuation assets totaling AUD 2.9 trillion at the end of the June 2020 quarter.81 Approximately 50 percent of the total assets are allocated between Australian listed and international shares, and the rest among property, cash, and Australian and international fixed interests.82 At the core of this superannuation industry are six types of super funds available to Australians: industry funds,83 corporate funds,84 retail funds,85 public sector funds,86 SMSFs,87 and small Australian Prudential Regulation Authority (APRA) funds.88 Of these, the SMSF category has the largest number of funds, comprising AUD 735 billion of total assets.89 It comes as no surprise therefore that the clients of DAG-Australia opted to invest their SMSF monies in an international fund such as the URF.

And this is where the rubber meets the road for many U.S. expats and Australian nationals in the United States, such as Dixon. Because superannuation funds do not exist in the United States, they must run the gamut of the foreign entity classification regime. SMSFs in particular are susceptible to adverse U.S. tax treatment, resulting in double taxation in the United States and Australia.

A. U.S. tax classification regime

Foreign entities that are foreign trusts are subject to a different entity classification framework. Under reg. section 301.7701-4, a foreign trust is either an ordinary trust or a business trust for U.S. tax purposes. An ordinary trust exists to preserve assets, whereas a business trust is used to engage in a trade or business. If the latter, it would be treated as either a partnership or corporation based on specified characteristics.

Foreign trusts like the Australian super funds continue to evade definitive U.S. tax classification and treatment.90 In Australia the government encourages investment in a super to increase the level of savings for retirement by providing tax concessions, which also act as an offset to the fact that a super cannot be accessed until retirement. Therefore, owners of a super fund are given incentives to contribute to the super and engage in active investments that will grow the assets with those tax-favored rates. Those investments range from bonds and equities to partnership interests in business operations. Because U.S. tax laws are applied to determine the treatment of the super fund and as a corollary, income and gains generated by its underlying assets, the results are often incongruent and adverse to the preferential treatment applied in Australia. Thus, an Australian’s investment in his or her super, which is the third pillar in Australia’s retirement system,91 could be at risk in the United States depending on its classification.

B. Australian perspective

From an Australian perspective, super funds are trusts created under superannuation laws92 to provide for an employee’s retirement and they therefore receive tax-favored treatment to encourage savings and asset growth. Unlike traditional retirement funds, contributions and earnings generated by investments held by a super fund are taxed at a low flat rate of 15 percent.93 Broadly, when a super fund has derived a capital gain from the disposal of an asset held in the fund, any net capital gain, after deducting any capital losses, will be included in the fund’s taxable income and will attract tax of 15 percent, which may be further reduced to 10 percent.94 Contributions and earnings cannot be accessed by its beneficial owner (the employee) until retirement age. On retirement, distributions from the super fund are generally tax-free.

When superannuation reforms were enacted in 2017,95 Australia’s Parliament made clear its intent to continue providing tax-favored treatment for the super so that it would eventually replace money paid out of the old age pension funded by government. In short, one could say it is almost Australian social security. This explains why Australians are perplexed and astounded at how the United States could tax contributions, earnings, and distributions from a super simply because the beneficiary of that super is also an American. More importantly, a super fund’s investment in U.S.-based assets (such as real estate, U.S. start-up companies, or businesses) could be taxed by the United States not as a foreign pension fund, subject to preferential rates, but just like any other foreign investor, subject to full U.S. tax rates and withholding taxes.

To be fair, super funds do not exist nor resemble any entity or structure in the U.S. tax world. This explains in large part why, until the IRS issues definitive guidance on this issue, there is not one U.S. tax perspective on what a super fund is for U.S. tax purposes. One on hand, it is a foreign pension that would not be subject to any tax-deferred treatment extended to a U.S. 401(k) account or IRA. It could also be a foreign grantor trust if it has a U.S. taxpayer contributor and a U.S. individual beneficiary designated to receive tax-free distributions from the super upon satisfaction of statutory conditions of release (that is, it upon reaching retirement age). Either classification leads to some degree of U.S. taxation on contributions, earnings, and distributions received by a U.S. taxpayer from the super. And because a super is a foreign asset, it also adds to the complexity of a U.S. taxpayer’s international reporting obligations.

IV. Superannuation funds up close

The super fund most susceptible to adverse U.S. tax treatment as a foreign grantor trust is the same type of super that is at issue in Dixon; that is, an SMSF that has a U.S. grantor and a U.S. beneficial owner.96 When it does, it is most prone to treatment as a foreign grantor trust, which would mean that all contributions and earnings in the SMSF, including its assets, are attributed directly as owned by its U.S. beneficial owner. Assets that are foreign equities would be further subject to burdensome treatment as PFICs, which would require annual tax filings and at worse, payment of PFIC taxes. Preparing a U.S. tax return to disclose income, gains, and assets held by the SMSF as if the SMSF did not exist poses a substantial financial burden to the U.S. taxpayer. The SMSF’s unique structure lends itself to this diabolical outcome.

A. SMSF Structure

The regime for SMSFs was introduced under the Superannuation Legislation Amendment Act (No. 3) 1999.97 An SMSF is essentially a trust structure that provides benefits to its members, the beneficiaries, upon their retirement. An SMSF is established broadly by creating the trust fund and drafting a trust deed that sufficiently describes the purposes of the fund and specifies the regulations to be followed by the trustee.

A trust is established when the settlor settles property on trust for the benefit of the beneficiaries. The trustee must then administer the trust in accordance with the terms of the trust deed. The settlor is generally a person unrelated to the beneficiaries and has no further involvement in the trust following the initial settlement of property on trust. For SMSFs, the trustee effectively assumes the role of settlor.

In Australia, a settlor is prohibited from receiving trust distributions and is usually excluded from the class of beneficiaries because of legislative restrictions on revocable trusts. An SMSF is essentially a revocable trust, given that members (that is, the beneficiaries) are also trustees; however, it is unique in that the SMSF member structure is accepted.

Members can contribute to their SMSFs in several different ways, and trustees must follow regulations in this regard. Contributions may be concessional or non-concessional. Broadly, concessional contributions made to an SMSF are included in the SMSF’s assessable income and taxed at the concessional rate of 15 percent. Non-concessional contributions are after-tax amounts that members contribute into their SMSFs that are not taxed in the superannuation fund. A non-concessional contributions cap of AUD 100,000 annually applies to members 65 or over but under 75. In some circumstances, members may make noncash contributions into their funds. Generally, such contributions are restricted to the transfer of listed securities or business real property.

For an SMSF to qualify for concessional tax treatment, it must be a complying fund under sections 42A and 45 of the Superannuation Industry (Supervision) Act 1993 (SISA), section 10(1). Broadly, an SMSF will be a complying resident fund if the Australian Taxation Office has not issued the fund with a notice of noncompliance. Such a notice may be issued when there is a serious contravention of the SISA.

B. SMSFs as foreign grantor trusts

SMSFs are unique in Australia’s superannuation system and differ from other funds, because members are in control and have sole responsibility for their retirement savings and, therefore, all investment decisions. At the same time, trustees must abide by all regulatory requirements and responsibilities. An SMSF from an Australian perspective is essentially a revocable trust, given that its members (that is, the beneficiaries) are also trustees.

From a U.S. tax perspective, an SMSF could be treated as a foreign grantor trust that would be disregarded for U.S. tax purposes if there is a U.S. person who contributes and a U.S. person who benefits from the trust. Some SMSFs fall squarely within these guidelines when a U.S. person makes voluntary concessional and non-concessional contributions to the fund, and another U.S. person (or the same one) is entitled to receive retirement distributions from the same fund. Treatment as a foreign grantor trust means that all the income, gains, deductions, and credits accrued in the SMSF are immediately attributed to the U.S. person who made contributions to the fund. However, the U.S. person would also be able to claim FTCs for Australian taxes paid by the SMSF on its Australian tax returns. Theoretically, because contributions and earnings accrued in the SMSF would have already been subject to U.S. tax, any distributions received from the fund would constitute post-tax money and be tax-free.

Many issues arise if the SMSF is treated as a foreign grantor trust for U.S. tax purposes. For one, Australian employers who are non-U.S. persons must make mandatory contributions to the fund as superannuation guarantee payments. Therefore, only that portion of the fund that directly correlates to the U.S. person’s contributions (and arguable earnings on those amounts) should be subject to U.S. tax. The other portion, which is paid by the Australian employer for the benefit of its U.S. person-employee, would be likely treated as a foreign non-grantor trust for U.S. tax purposes. That treatment would not be in the best interests of the U.S. person who is the member-beneficiary of that trust. This is because U.S. beneficiaries of a foreign trust may incur additional tax liabilities for distributable net income that is allocable to them.98 Because an SMSF must accumulate investment earnings and gains in the fund until the member reaches retirement age (or otherwise satisfies a condition of release), it is very likely that those amounts would constitute undistributed net income for U.S. tax purposes, which would be subject to U.S. throwback taxes. to the U.S. person as the beneficiary of the foreign trust. This outcome is indeed unfavorable to that U.S. person. On one hand, the SMSF is subject to preferential treatment in Australia, and yet in the United States, it seems as if the SMSF is treated adversely to the detriment of its U.S. owner.

V. Are SMSFs foreign social security?

It is not surprising that some tax practitioners have taken the position that a super should be treated as an exempt foreign social security plan, because legislative reforms to the superannuation laws effective July 1, 2017, provide a formal legislative intent for the superannuation regime to “provide to Australians retirement income that would substitute or supplement the Age Pension.”99 However, Australian legislative intent does not control U.S. tax classification of super funds. As previously discussed, a super fund is subject to the U.S. foreign tax classification rules for trusts, and an SMSF in particular would be likely treated as a foreign grantor trust in the United States. However, we must pause to consider whether the superannuation guarantee component, which would not fall under the foreign grantor trust treatment because it is contributed by an Australian employer (rather than the U.S. person), could be classified as foreign social security. To do so, one must understand first how Australia views the superannuation guarantee, and how the United States would likely treat it under its prevailing tax regime.

A. superannuation guarantee

Under Australia’s superannuation guarantee scheme, employers must provide to their employees the minimum prescribed level of superannuation support, subject to limited exceptions.100 Employers are now required to contribute a minimum amount of 9.5 percent of an employee’s ordinary time earnings (broadly, salary and wages) to the employee’s chosen super fund, which includes SMSFs.101 From July 1, 2021, the rate will increase to 10 percent and steadily increase to 12 percent from July 1, 2025, onward.

Employers must make these superannuation guarantee payments, which are tax-deductible, by the quarterly due dates. If an employer has not paid the minimum amount within these due dates, it will be liable to pay the superannuation guarantee charge to the ATO. The charge is nondeductible and comprises the unpaid superannuation contribution, an administrative component (AUD 20 per employee per quarter), and interest. Failure to pay the superannuation guarantee charge could give rise to penalties of up to 200 percent of the unpaid superannuation in some circumstances in which employers fail to provide information to the ATO,102 such as a quarterly superannuation guarantee statement, and it is not uncommon for these penalties to be imposed.

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1 More commonly referenced as check-the-box regulations, the final version of these regulations was issued December 18, 1996, as T.D. 8697 and promulgated as reg. section 301.7701-1.
2 See T.D. 8697, section A. Trusts generally do not have associates or do business for profit as an objective. Classification of trusts are under reg. section 301.7701-4. Classification of business entities are under reg. section 301.7701-2 and -3.
3 Reg. section 301.7701-2.
4 Reg. section 301.7701-3.
5 See generally reg. section 301.7701-3(b).
6 Reg. section 301.7701-3©(1) provides details on how the election is made. It is generally made by attaching a Form 8832, “Entity Classification Election,” to the federal income tax or information return of any direct or indirect owner of the entity for the tax year of the owner that includes the date on which it was effective.
7 Dixon v. Commissioner, No. 13874-19 (T.C. filed July 25, 2019) (Dixon II).
8 The U.S. tax treatment of Alan Dixon’s Australian self-managed superannuation funds (SMSFs) was raised by the IRS in Respondent’s Answer at para. 4(t), Dixon II, No. 13874-19 (T.C. Sept. 17, 2019).
9 See reg. section 301.7701-2(b)(8)(i).
10 An AusPty with a single member that has unlimited liability under Australian laws would be treated as a disregarded entity for U.S. tax purposes unless it timely filed an election to be treated as an association taxable as a corporation. As a corollary, an AusPty with more than one member would be treated as a de facto partnership for U.S. tax purposes unless it filed an election to be treated as corporation.
11 See section 1.5.2 of the Australian Corporations Act 2001.
12 To be able to elect disregarded entity classification, the foreign entity must show that it has one owner with unlimited liability under the check-the-box regulations. However, it is not uncommon for shareholders of an AusPty to also be its directors. In fact, shareholders of an AusPty that is a corporate trustee of an SMSF must also be its directors under Australian superannuation laws. Because directors do not have limited liability under Australian corporate laws, it would appear that a shareholder who is also a director of an AusPty that is a corporate trustee of a SMSF may assert that the AusPty has one member with unlimited liability and request disregarded entity classification anyway. See section 1.5.3 of the Australian Corporations Act 2001.
13 Franked dividends are dividends that have been paid from profits that have been subject to tax at the relevant corporate rate. The individual shareholder who receives a franked dividend also gets a franking credit (aka imputation credits) attached to the dividend, which represents the tax paid by the company. If the individual’s top tax rate is less than the company’s tax rate, then the ATO refunds the difference.
14 Franking credits were introduced in Australia in 1987 to remove the incidence for double taxation on Australian taxpayers.
15 See, e.g., section 962, which was used by many U.S. taxpayers to elect as a corporate shareholder for U.S. tax purposes.
16 It would be difficult to achieve a complete 100 percent match because Australia has a fiscal-year regime while the United States has a calendar-year regime. Also, U.S. FTC rules limit the amount of Australian taxes that can be claimed by a U.S. taxpayer to offset U.S. taxes in any given year.
17 See Dixon v. United States, 2:19-cv-14101 (D.N.J. filed June 21, 2019) (Dixon I); Dixon II, No. 13874-19; and Dixon v. United States, No. 19-270T (Fed. Cl. 2020) (Dixon III).
18 Dixon had been living in the United States since 2014 on an E-2 visa.
19 Dixon left his position as CEO in 2019 and sold his entire 16.7 percent stake in the company to Pitt Capital in August 2020 for AUD 18.6 million. He also left the company’s board in July 2020. See Jonathan Shapiro and Carrie LaFrenz, “Dixon Name to Go, Heartache Remains,” Australian Financial Review, Oct. 17, 2020; and Shapiro and LaFrenz, “ASIC Action May Cost Dixon Advisory Tens of Millions,” Australian Financial Review, Sept. 4, 2020.
20 Dixon Advisory was founded by Alan’s father, Daryl Dixon, purportedly one of the three people who understood Australia’s entire superannuation system. He was one of its most trusted experts. He and his wife established Dixon Advisory in 1986 and grew it into the fourth largest superannuation advice firm in Australia. See Shapiro and LaFrenz, “Dixon Name to Go,” supra note 19; see also Shapiro and LaFrenz, “ASIC Action,” supra note 19. Daryl and his son were on the investment committee of the company. He left the business in 2019. Id.
21 See John Wasiliev, “How In-House Investments Unraveled Dixon,” Australian Financial Review, Nov. 6, 2020.
22 Evans & Partners was co-founded by former Essendon Football Club Chair David Evans. See Samantha Bailey, “Adviser in ASIC’s Crosshairs,” Herald Sun (Australia), Sept. 5, 2020. See also Myriam Robin and Shapiro, “No Regrets Over Evans Dixon Merger: David Evans,” Australian Financial Review, Nov. 11, 2019.
23 Just recently, the shareholders of Evans Dixon voted to approve the rebranding of the company to E&P Financial Group after the ASIC, one of the five government agencies with oversight over Australian superannuation funds, filed a court action against Dixon Advisory & Superannuation Services, a wholly owned subsidiary of Evans Dixon, alleging breaches of its best interest duty obligations in September 2020. See LaFrenz and Shapiro, “Evans Dixon Quiet on ASIC Case Fallout,” Australian Financial Review, Nov. 12, 2020. The corporate regulator also filed a multimillion-dollar Federal Court of Australia claim alleging Dixon Advisory failed to act in its clients’ interests or provide appropriate advice in recommending investments, raking in hundreds of millions of dollars in fees. See Shapiro and LaFrenz, “Dixon Name to Go,” supra note 19.
24 See Wasiliev, supra note 21.
25 See Shapiro and LaFrenz, “Evans Dixon Makes Changes to Walsh & Co Board,” Australian Financial Review, Dec. 19, 2019.
26 Dixon Advisory & Superannuation Services became a wholly owned subsidiary of the new public company.
27 See Bailey, supra note 22.
28 It was reported that the URF was a “one-time $1 billion share-market-listed” fund that was discovered to be in serious trouble after the 2017 merger. As of November 2020, the fund apparently has a “meagre market capitalization of over just AUD 80 million with shares that cost investors up to $2 to buy having a market value at just 21c this week.” See Wasiliev, supra note 21.
29 See Shapiro and LaFrenz, “Dixon Name to Go,” supra note 19.
30 See Shapiro and LaFrenz, “Evans Dixon Model Under Scrutiny as Stocks Plunge,” Australian Financial Review, June 7, 2019.
31 See Wasiliev, supra note 21.
32 See Shapiro and LaFrenz, “Dixon Name to Go,” supra note 19; and Shapiro and LaFrenz, “ASIC Action,” supra note 19. The Australian Financial Review reported that the ASIC federal court claim tallied up to AUD 135.9 million of fees paid by the URF to Dixon Advisory and other related parties from September 2015 to June 2018. These included management fees charged on gross assets of AUD 25.8 million, responsible entity fees of AUD 12.54 million, stamping and handling fees of AUD 5.8 million, and property transaction fees of AUD 18 million. It also paid AUD 68 million to Dixon Projects, which was hired to renovate properties in the fund located in New Jersey and Manhattan.
33 See Shapiro and LaFrenz, “Evans Dixon Model,” supra note 30. See also Shapiro and LaFrenz, “Dixon Name to Vanish, Leaving Behind Devastated Clients,” Australian Financial Review, Oct. 16, 2020; and Shapiro and LaFrenz, “ASIC Action,” supra note 19.
34 The Australian Financial Review reported that “most of Dixon Advisory’s 4,000-odd clients are middle-class Australians with reasonable wealth accumulated over decades in white-collar professions. The balances range between AUD 500,000 to 3 million.” See Shapiro and LaFrenz, “Dixon Name to Go,” supra note 19. See also Wasiliev, supra note 21, stating that the URF was capitalized with “hundreds of millions of dollars provided by thousands of Dixon Advisory SMSF clients.” Id.
35 See Defendant’s Memorandum at 2, Dixon III, No. 19-270T (Fed. Cl. Nov. 15, 2019). As a 16.7 percent shareholder of Evans Dixon, he would be required to include as taxable income dividends he received from DAG-Australia and pay U.S. taxes on those amounts.
36 See id. at 5, 11, and 12.
37 His original 2013 and 2014 income tax returns were filed on October 14, 2014, and October 6, 2015. See Petitioner’s Motion at para. 1(a), Dixon II, No. 13874-19 (T.C. July 25, 2019).
38 See Defendant’s Memorandum at 4, Dixon III, supra note 35. See also Defendant’s Answer and Additional Defense at 3, Dixon III, No. 19-270T (Fed. Cl. Sept. 13, 2019).
39 See Sarah Thompson, Anthony Macdonald, and Tim Boyd, “360 Capital Storms Into Evans Dixon,” Australian Financial Review, Aug. 30, 2020. It was reported that Dixon held 39,122,625 shares in Evans Dixon (equivalent to 16.7 percent ownership), which sold for 45 cents each. It was listed on the ASX in 2017 at AUD 2.50 per share. He walked away with total consideration of AUD 17.6 million for selling all his shares in Evans Dixon.
40 See Form 886-A attached as Exhibit A to Respondent’s Answer, Dixon II, No. 13874-19 (T.C. Sept. 19, 2019).

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Marsha Laine Dungog Partner | San Francisco

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