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Establishing a U.S. Presence

Patrick Fazzone, Montgomery Fazzone & Taylor PLLC Email: pfazzone@mft-law.com ; Tel: 61-2 9262 6700; Mobile: 0416 184 943. Establishing a U.S. Presence. KEY CONSIDERATIONS. Patrick Fazzone, Montgomery Fazzone & Taylor PLLC

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Establishing a U.S. Presence

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  1. Patrick Fazzone, Montgomery Fazzone & Taylor PLLC Email: pfazzone@mft-law.com; Tel: 61-2 9262 6700; Mobile: 0416 184 943 Establishing a U.S.Presence

  2. KEY CONSIDERATIONS Patrick Fazzone, Montgomery Fazzone & Taylor PLLC Email: pfazzone@mft-law.com; tel: 61-2 9262 6700; Mobile: 0416 184 943 • Branch Office vs. Separate Entity • The latter is usually preferable because of limitations on owner liability • Where to set up • Especially important if you decide to establish a separate entity • Governed by State law; states differ • States like Delaware and Nevada have more favourable laws on corporate governance and favourable local tax treatment. • Still would need to register to do business and pay taxes where the principal place(s) of business are located. • What type of entity to set up

  3. BEST TO SELECT A STRUCTURE THAT AFFORDS LIMITED LIABILITY PROTECTION Patrick Fazzone, Montgomery Fazzone & Taylor PLLC Email: pfazzone@mft-law.com; tel: 61-2 9262 6700; Mobile: 0416 184 943 Structures Include: • C Corporation • Limited Partnership/Limited Liability Partnership • Limited Liability Company • S Corporation—N/A Most relevant for Australian companies—C Corp and LLC Tax Treatment--a key difference • C Corp taxed like Australian Pty Ltd companies—at corporate level and on distributions to shareholders • Dividends to Australian shareholders subject to 5% withholding unless exempted under the tax treaty • LLCs can be taxed like C Corporations or like partnerships depending on treatment elected

  4. Think through carefully what structure will best fit your plans LLCS • US co-owners often prefer them because of the partnership election • This doesn’t mean that tax treatment for an Australian owner will be as favorable. • Australian owner would need to file US tax returns and pay branch profits tax. • Whether to set up a C Corporation or LLC and where should be carefully considered in advance. Other Important Considerations: • Selling to the US Government? If so, there may be other potentially attractive structures • Need for more sophisticated commercial arrangements such as a JV or a holding company? • Requirements of US funders – VCs will only finance a C Corporation • State incentive programs – benefits may be primarily relief from corporate income tax assessed on C Corporations • Immigrations/staff transfer issues

  5. Patrick Fazzone Montgomery Fazzone & Taylor PLLC • pfazzone@mft-law.com • Sydney: Tel: 61-2 9262 6700; Mobile: 0416 184 943; • U.S. : Tel: (202) 888 2103

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