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Source: Companies Office – Press Release/Statement:

Headline: Companies Act (Overseas Incorporated Companies—Australian Wholly–owned Entities) Exemption Notice 2020

Exemption Notice pursuant to section 207L of the Companies Act 1993

Pursuant to section 207L of the Companies Act 1993, the Registrar of Companies gives the following notice (to which is appended a statement of reasons of the Registrar).

Notice

1. Title

This notice is the Companies Act (Overseas Incorporated Companies—Australian Wholly-owned Entities) Exemption Notice 2020.

2. Commencement

This notice comes into force on 1 August 2020.

3. Expiry

This notice expires on the close of 31 July 2025.

4. Application

An exemption granted by this notice applies to the following accounting periods of an exempt overseas company:

  1. an accounting period of the exempt overseas company that commenced before the exemption is granted (including an accounting period that ended before the exemption is granted) if:
    1. in the case of copies of financial statements or group financial statements for that period that are required to be delivered for registration under sections 201 or 202 of the Act, the exemption is granted before those documents are required to be delivered for registration under that section; or
    2. in any other case, the exemption is granted before the financial statements or group financial statements for that period are required to be completed; and
  2. subsequent accounting periods.

5. Interpretation

In this notice, unless the context otherwise requires:

Act means the Companies Act 1993;

ASIC Instrument means the ASIC Corporations (Wholly-owned Companies) Instrument 2016/785;

Australian GAAP means generally accepted accounting principles in Australia;

exempt overseas company means a company that:

 a. is incorporated in Australia;

 b. is a company to which sections 201 or 202 of the Act applies; and

 c. has been granted relief under the ASIC Instrument;

NZ GAAP means New Zealand’s generally accepted accounting practice; and

specified financial statements, in relation to an exempt overseas company, means the consolidated financial statements that are required to be prepared in accordance with the relief granted under the ASIC Instrument in respect of the exempt overseas company.

6. Exemptions for directors of exempt overseas companies

Every director of an exempt overseas company is exempted from the following provisions in respect of the exempt overseas company:

  1. sections 201, 202, and 207 of the Act, except to the extent that these sections require audited, NZ GAAP compliant financial statements to be prepared for the exempt overseas company’s New Zealand business in accordance with sections 204 and 207 of the Act; and
  2. section 207E of the Act to the extent that it requires copies of the financial statements and group financial statements of the exempt overseas company to be delivered to the Registrar for registration.

7. Conditions

The exemption in clause 6 is subject to the conditions that:

  1. the specified financial statements comply with Australian GAAP;
  2. the specified financial statements are audited by a qualified auditor in accordance with the relevant standards relating to auditing or assurance that are in force in Australia; and
  3. the directors of the exempt overseas company ensure that, within 20 working days after the specified financial statements are required to be signed, the following documents are delivered to the Registrar for registration:
    1. a copy of the specified financial statements together with a copy of the auditor’s report on those statements;
    2. a memorandum signed by two directors (or one if there is only one director) of the exempt overseas company which states that:
      1. the specified financial statements are the consolidated financial statements that are required to be prepared under the ASIC Instrument and are not the financial statements of the exempt overseas company;
      2. the exempt overseas company has been granted relief under the ASIC Instrument and the basis for which the exempt overseas company qualifies for such relief; and
      3. the nature of the relief granted; and
    3. a copy of the ASIC Instrument.

Dated at Wellington this 29th day of July 2020.

ROB RENDLE, Deputy Registrar of Companies.

Statement of Reasons

This notice, which comes into force on 1 August 2020 and expires on the close of 31 July 2025, exempts the directors of certain overseas companies incorporated in Australia from various provisions of the Companies Act 1993 (“Act”).

The effect of the exemption is to allow overseas companies incorporated in Australia, which are wholly-owned subsidiaries that have been granted relief under the ASIC Corporations (Wholly-owned Companies) Instrument 2016/785 (“ASIC Instrument”), to provide the consolidated financial statements that they are required to prepare under financial reporting requirements in Australia.

The ASIC Instrument provides that certain wholly-owned subsidiaries may be relieved from the requirement to prepare and lodge audited financial statements under Chapter 2M of the Corporations Act 2001 (Aust), where they enter into deeds of cross guarantee with their parent entity and meet certain other conditions. The relief is granted on the basis that the deed of cross guarantee makes the group of companies that are parties to that deed akin to a single legal entity in many respects. Creditors and potential creditors can then focus on the consolidated financial position for those entities rather than the individual financial statements of the wholly-owned subsidiaries that are parties to the deed.

The principal differences in financial statements provided by an overseas company relying on the exemption are:

  1. the directors of the overseas company will prepare and register audited financial statements for the New Zealand business and the consolidated financial statements prepared for the group of which the overseas company is a member (not stand-alone financial statements for the overseas company or for the overseas company and its subsidiaries);
  2. the consolidated financial statements will comply with generally accepted accounting principles in Australia (rather than generally accepted accounting practice in New Zealand); and
  3. the consolidated financial statements will be audited in accordance with auditing and assurance standards in force in Australia (rather than the applicable auditing and assurance standards in force in New Zealand).

The Registrar considers that it is appropriate to grant the exemption because:

  • the Registrar has had regard to the financial reporting requirements that must be complied with by Australian incorporated companies who rely on the exemption. The exemption is limited to overseas companies that have been granted relief by ASIC under the ASIC Instrument;
  • an overseas company relying on the exemption will still be required to file audited financial statements for its, or its group’s, New Zealand business (if the New Zealand business is large) prepared in accordance with New Zealand’s generally accepted accounting practice, as required by section 204 of the Act;
  • the Registrar is satisfied that the exemption will remove certain requirements that are unduly onerous or burdensome, as the costs of meeting those requirements is expected to exceed the benefits;
  • the Registrar is satisfied that the consolidated financial statements for the parent company that are required to be prepared under the ASIC Instrument provide sufficient information to avoid any detriment to members of the public who have dealings with companies incorporated in Australia who have been granted relief under the ASIC Instrument; and
  • the exemption addresses the particular difficulties experienced by Australian incorporated companies that carry on business in New Zealand, and that have been granted relief under the ASIC Instrument from the requirement to prepare stand-alone  financial statements for the overseas company in Australia. The exemption is not broader than what is reasonably necessary to address these difficulties and still require that consolidated financial statements be filed in New Zealand.

Date of notification in the New Zealand Gazette: 29 July 2020.

This notice is administered by the Registrar of Companies.

MIL OSI