Most founders hold their startup shares in a discretionary trust set up at incorporation, for flexibility on distribution and exit as well as asset protection. If you’re now incorporating a new company in the United States – typically a Delaware C corp – the question becomes which entity should hold the shares: you personally, your discretionary family trust, or an Australian company sitting in between.
This piece assumes a genuine greenfield company. You’re subscribing for new shares in a brand new US company, not flipping an existing Australian company into a US parent, and the company has nothing to do with US property.
In this article, we walk through how dividends and exit proceeds are taxed under each structure, the estate tax and asset protection considerations that sit alongside the tax position, and how to think about which structure suits your plans for the company.
Why trust flexibility isn’t the deciding factor anymore
The choice no longer turns on trust flexibility the way it used to. From 1 July 2028, a 30% minimum tax applies at the trust level, and the headline CGT changes from 1 July 2027 reshape the 50% discount for everyone – with the proposed startup carve-out unlikely to reach a US company at all (more on this in our pieces on the trust changes and the CGT update).
It turns instead on the two things you actually care about: getting dividends out of the C corp, and your tax position on exit.
Dividends from the C corp
When the US company pays a dividend, US tax is withheld at the border and the dividend is then taxed in Australia.
The Australian company is the strongest position here. Because it holds at least 10% of the C corp, the treaty cuts US withholding to 5%, sometimes 0%, and the dividend is then effectively tax free in the company. The catch is that this is deferral, not a permanent saving – when the company later pays the money out to you, it’s an unfranked dividend at your marginal rate. So the company wins clearly if you’re reinvesting rather than drawing the cash out.
Holding personally is simple and clean. You claim the 15% treaty rate without difficulty, then pay your marginal rate with a credit for the US tax.
The trust is the weakest position. A discretionary trust often can’t claim the treaty rate cleanly, risking 30% withheld rather than 15%, and the 30% trust floor from 2028 removes the old streaming benefit that made trusts attractive for this purpose.
A future exit
On the US side, the answer is the same for all three structures: a non-resident selling shares in a normal US operating company is generally outside US tax. The difference is entirely on the Australian side.
Holding personally or through the trust is best for a personal payday. Both currently get the 50% CGT discount, and whatever the regime becomes from 1 July 2027, the proceeds land in your hands. The trust historically let you spread the gain across beneficiaries, but the 30% floor from 2028 takes most of that advantage away.
The Australian company is best only if you reinvest. It gets no CGT discount, but it has a participation exemption of its own – a gain on selling an active foreign operating business can be reduced substantially, even to nil, where the company has held at least 10% for twelve months. The problem is the same as for dividends: getting that money out to you personally is taxed at your marginal rate with no discount, and the precise mechanics need advice rather than assumption. Excellent at the company level, worst if you want cash in hand.
The picture at a glance
| Structure | Dividends from the C corp | Exit / share sale |
| Individual | 15% US withholding, claimed cleanly, then your marginal rate with a credit. Simple. | 50% CGT discount today (reshaped from 1 July 2027). Proceeds already yours. |
| Discretionary trust | Up to 30% US withholding, then marginal rates and a 30% trust floor from 2028. Weakest. | Same discount as an individual, with little room left to spread across beneficiaries. |
| Australian company | 5%, sometimes 0%, withholding, then tax free in the company. Best, if reinvesting. | Gain can be largely exempt for an active business, but extracting it to you is taxed at your marginal rate with no discount. Best only if reinvesting. |
Two things that sit alongside the tax
US estate tax
Shares in a US company are US assets. Held in your own name, your estate gets only a US$60,000 exemption before US estate tax of up to 40% applies. Both the trust and the Australian company take this off the table – though for the trust, it depends on the deed and should be checked.
Asset protection
The trust gives the strongest separation between the shares and you personally. The company gives some protection. Holding personally gives none.
So which structure?
As they say, it all depends!
There’s no single winner, because the structures pull in opposite directions. The Australian company is best for bringing dividends home and reinvesting, and it removes the estate tax exposure. Holding personally or through the trust is best for a clean personal payday on exit, and the trust adds asset protection and estate tax cover on top.
The deciding question is what you plan to do with the money. Build and sell for a personal payday, and the trust is the sensible default – better than your own name on protection and estate tax, and no worse on exit. Draw profits home and reinvest, and the Australian company is the better vehicle, accepting that the cash is taxed at your marginal rate whenever you take it out.
Thinking about a US company?
Cross-border structures are difficult and expensive to unwind once shares are issued, so the right answer depends heavily on your situation and your plans for the company. If you’re thinking about setting up a US company, the team at Standard Ledger can help you work through the structure before shares are issued, not after. Book a free call with the team.
Disclaimer: This article is for general informational purposes only and does not constitute financial, legal or tax advice. Please speak with a qualified adviser (hey, that’s us!) before making decisions based on your specific circumstances.
