House of Representatives

Explanatory Memorandum

Circulated By the Authority of the Deputy Prime Minister and Treasurer, the Hon Wayne Swan MP

Australia-the Cook Islands agreement

Outline of chapter

4.1 Schedule 2 to this Bill amends the International Tax Agreements Act 1953 (Agreements Act 1953) to define and give the force of law to the 2009 Agreement between the Government of Australia and the Government of the Cook Islands on the Allocation of Taxing Rights with respect to Certain Income of Individuals and to Establish a Mutual Agreement Procedure in respect of Transfer Pricing Adjustments (Cook Islands agreement). Subsection 3AAA(1) of the Agreements Act 1953 will define the Cook Islands agreement and subsection 5(1) will give it the force of law in Australia. This chapter explains the rules that apply in the Cook Islands agreement.

Context of amendments

4.2 The Cook Islands agreement was signed in Rarotonga on 27 October 2009. There is no pre-existing agreement of this type between Australia and the Cooks Islands.

Summary of new law

Main features of the Cook Islands agreement

4.3 The main features of the Cook Islands agreement are as follows:

•

Income from pensions and retirement annuities will generally be taxed only in the country of residence of the recipient, provided the income is subject to tax in that country [Article 5] .

•

Income from government service will generally be taxed only in the country that pays the remuneration. However, the remuneration shall only be taxed in the other country where the services are rendered in that other country by a resident of that other country who is a national of that other country or did not become a resident of that other country for the purpose of rendering the services [Article 6] .

•

Payments made from abroad to visiting students and business apprentices for the purposes of their maintenance, education or training will be exempt from tax in the country visited [Article 7] .

•

A non-binding administrative mechanism will be established to assist taxpayers to seek resolution of transfer pricing disputes [Article 8] .

Comparison of key features of new law and current law

The Cook Islands agreement

4.4 A full transcript of the Cook Islands agreement and detailed explanation follows:

' AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE COOK ISLANDS ON THE ALLOCATION OF TAXING RIGHTS WITH RESPECT TO CERTAIN INCOME OF INDIVIDUALS AND TO ESTABLISH A MUTUAL AGREEMENT PROCEDURE IN RESPECT OF TRANSFER PRICING ADJUSTMENTS

The Government of Australia and the Government of the Cook Islands ("the Contracting Parties"),

Recognising that the Contracting Parties have concluded an Agreement on the Exchange of Information with Respect to Taxes, and

Desiring to conclude an Agreement for the allocation of taxing rights with respect to certain income of individuals and to establish a mutual agreement procedure in respect of transfer pricing adjustments,

Have agreed as follows:

ARTICLE 1

PERSONS COVERED

This Agreement shall apply to persons who are residents of one or both of the Contracting Parties.

ARTICLE 2

TAXES COVERED

1 The existing taxes to which this Agreement shall apply are:

(a)

in Australia, the income tax imposed under the federal law of Australia;

(hereinafter referred to as "Australian tax").

(b)

in the Cook Islands, the income tax;

(hereinafter referred to as "Cook Islands tax").

2 This Agreement shall also apply to any identical or substantially similar taxes which are imposed after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting Parties shall notify each other within a reasonable period of time of any substantial changes to the taxation laws covered by this Agreement.

3 This Agreement shall not apply to taxes imposed by states, municipalities, local authorities or other political subdivisions, or possessions of a Contracting Party.

ARTICLE 3

DEFINITIONS

1 For the purposes of this Agreement, unless the context otherwise requires:

(a)

the term "Australia", when used in a geographical sense, excludes all external territories other than:

(i)

the Territory of Norfolk Island;

(ii)

the Territory of Christmas Island;

(iii)

the Territory of Cocos (Keeling) Islands;

(iv)

the Territory of Ashmore and Cartier Islands;

(v)

the Territory of Heard Island and McDonald Islands; and

(vi)

the Coral Sea Islands Territory,

and includes any area adjacent to the territorial limits of Australia (including the Territories specified in this subparagraph) in respect of which there is for the time being in force, consistently with international law, a law of Australia dealing with the exploration for or exploitation of any of the natural resources of the exclusive economic zone or the seabed and subsoil of the continental shelf;

(b)

the term "the Cook Islands" means the territory of the Cook Islands;

(c)

the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or an authorised representative of the Commissioner and in the case of the Cook Islands, the Collector of Inland Revenue or an authorised representative of the Collector;

(d)

the term "Contracting Party" means Australia or the Cook Islands, as the context requires;

(e)

the term "person" includes an individual, a company and any other body of persons;

(f)

the term "tax" means Australian tax or Cook Islands tax, as the context requires; and

(g)

the term "transfer pricing adjustment"means an adjustment made by the competent authority of a Contracting Party to the profits of an enterprise as a result of applying the domestic law concerning taxes referred to in Article 2 of that Contracting Party regarding transfer pricing.

2 As regards the application of this Agreement at any time by a Contracting Party, any term not defined therein shall, unless the context otherwise requires, have the meaning that it has at that time under the law of that Contracting Party, for the purposes of the taxes to which this Agreement applies, with any meaning under the applicable tax laws of that Contracting Party prevailing over a meaning given to the term under other laws of that Contracting Party.

ARTICLE 4

RESIDENT

1 For the purposes of this Agreement, the term "resident of a Contracting Party" means:

(a)

in the case of Australia, a person who is a resident of Australia for the purposes of Australian tax; and

(b)

in the case of the Cook Islands, a person who is a resident of the Cook Islands for the purposes of Cook Islands tax.

2 A person is not a resident of a Contracting Party for the purposes of this Agreement if the person is liable to tax in that Contracting Party in respect only of income from sources in that Contracting Party.

3 Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Parties, then the person's status shall be determined as follows:

(a)

the individual shall be deemed to be a resident only of the Contracting Party in which a permanent home is available to that individual; if a permanent home is available in both Parties, or in neither of them, that individual shall be deemed to be a resident only of the Contracting Party with which the individual's personal and economic relations are closer (centre of vital interests);

(b)

if the Contracting Party in which the individual has their centre of vital interests cannot be determined, the individual shall be deemed to be a resident only of the Contracting Party in which the individual has an habitual abode;

(c)

if the individual has an habitual abode in both Contracting Parties, or in neither of them, the competent authorities of the Contracting Parties shall settle the question by mutual agreement.

4 Where by reason of paragraph 1 a person other than an individual is a resident of both Parties, then it shall be deemed to be a resident only of the Contracting Party in which its place of effective management is situated.

ARTICLE 5

PENSIONS AND RETIREMENT ANNUITIES

1 Pensions (including government pensions) and retirement annuities paid to an individual who is a resident of a Contracting Party shall be taxable only in that Party. However, pensions and retirement annuities arising in a Contracting Party may be taxed in that Party where such income is not subject to tax in the other Contracting Party.

2 The term "retirement annuity" means:

(a)

in the case of Australia, a superannuation annuity payment within the meaning of the taxation laws of Australia;

(b)

in the case of the Cook Islands, an annuity payment that is not an approved annuity within the meaning of the taxation laws of the Cook Islands; and

(c)

any other similar periodic payment agreed upon by the competent authorities.

ARTICLE 6

GOVERNMENT SERVICE

1 (a)

Salaries, wages and other similar remuneration, other than a pension or retirement annuity, paid by a Contracting Party or a political subdivision or a local authority thereof to an individual in respect of services rendered to that Contracting Party or subdivision or authority shall be taxable only in that Contracting Party.

(b)

However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting Party if the services are rendered in that Party and the individual is a resident of that Party who:

(i)

is a national or citizen of that Contracting Party; or

(ii)

did not become a resident of that Party solely for the purpose of rendering the services.

2 Notwithstanding the provisions of paragraph 1, salaries, wages and other similar remuneration in respect of services rendered in connection with any trade or business carried on by a Contracting Party or a political subdivision or a local authority thereof may be taxed in accordance with the laws of a Party.

ARTICLE 7

STUDENTS

Payments which a student or business apprentice who is or was immediately before visiting a Contracting Party a resident of the other Contracting Party and who is temporarily present in the first-mentioned Party solely for the purpose of their education or training, receives for the purpose of their maintenance, education or training shall not be taxed by that Party, provided such payments arise from sources outside that Party.

ARTICLE 8

MUTUAL AGREEMENT PROCEDURE IN RESPECT OF TRANSFER PRICING ADJUSTMENTS

1 Where a resident of a Contracting Party considers the actions of the other Contracting Party results or will result in a transfer pricing adjustment not in accordance with the arm's length principle, the resident may, irrespective of the remedies provided by the domestic law of those Parties, present a case to the competent authority of the first-mentioned Party. The case must be presented within 3 years of the first notification of the adjustment.

2 The competent authorities shall endeavour to resolve any difficulties or doubts arising as to the application of the arm's length principle by a Contracting Party regarding transfer pricing adjustments. They may also communicate with each other directly for the purposes of this Article.

ARTICLE 9

EXCHANGE OF INFORMATION

The competent authorities of the Contracting Parties shall exchange such information as is forseeably relevant for carrying out the provisions of this Agreement. Information may be exchanged by the competent authorities for the purposes of this Article in accordance with the provisions of the Agreement on the Exchange of Information with Respect to Taxes concluded by the Contracting Parties (whether or not this Agreement, in whole or in part, forms part of the domestic law of either Contracting Party).

ARTICLE 10

ENTRY INTO FORCE

The Contracting Parties shall notify each other, in writing, through the diplomatic channel of the completion of their constitutional and legal procedures for the entry into force of this Agreement. This Agreement shall enter into force on the date of the last notification, and shall, provided an Agreement on the Exchange of Information with Respect to Taxes is in force between the Contracting Parties, thereupon have effect:

(a)

in respect of Australian tax, for any year of income beginning on or after 1 July in the calendar year next following the date on which this Agreement enters into force; and

(b)

in respect of Cook Islands tax, for any year of income beginning on or after 1 January in the calendar year following the date on which this Agreement enters into force.

ARTICLE 11

TERMINATION

1 This Agreement shall continue in effect indefinitely, but either of the Contracting Parties may give to the other Contracting Party written notice of termination.

2 Such termination shall become effective:

(a)

in respect of Australian tax, in the year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given; and

(b)

in respect of Cook Islands tax, in the year of income beginning on or after 1 January in the calendar year following that in which the notice of termination is given.

3 Notwithstanding the provisions of paragraph 1 or 2, this Agreement shall, on receipt through the diplomatic channel of written notice of termination of the Agreement on the Exchange of Information with Respect to Taxes between the Contracting Parties, terminate and cease to be effective on the first day of the month following the expiration of a period of 6 months after the date of receipt of such notice.

IN WITNESS WHEREOF the undersigned, duly authorised thereto by their respective Governments, have signed this Agreement.

DONE at [ ], [ ] this [ ] day of [ ], 200[ ], in duplicate.

FOR THE GOVERNMENT OF FOR THE GOVERNMENT OF AUSTRALIA: THE COOK ISLANDS:'

Detailed explanation of new law

Article 1 - Persons Covered

4.5 This Article establishes the scope of the application of the Cook Islands agreement by providing for it to apply to persons who are residents of one or both of the countries [Article 1] . For the purposes of the agreement 'person' includes an individual, company and other body of persons (see paragraph 1.16).

4.6 The application of the Cook Islands agreement to persons who are dual residents (that is, residents of both countries) is dealt with in Article 4 ( Resident ) (see paragraph 1.22).

Article 2 - Taxes Covered

4.7 This Article specifies the existing taxes of each country to which the Cook Islands agreement applies. This is, in the case of Australia, the federal income tax. [Article 2, subparagraph 1a)]

4.8 For the Cook Islands, this agreement applies to taxes on income. [Article 2, subparagraph 1b)]

4.9 The application of the Cook Islands agreement will be automatically extended to any identical or substantially similar taxes which are subsequently imposed by either country in addition to, or in place of, the existing taxes. The competent authorities of Australia and the Cook Islands are required to notify each other in the event of a substantial changes to the taxation laws covered by the Cook Islands agreement, within a reasonable period of time after those changes. [Article 2, paragraph 2]

4.10 The Agreement does not apply to taxes imposed by states, municipalities, local authorities or other political subdivisions or possessions. [Article 2, paragraph 3]

Article 3 - Definitions

Definition of Australia

4.11 The definition of 'Australia' follows corresponding definitions in Australia's modern tax treaties. 'Australia' is defined to include certain external territories and areas of the continental shelf. [Article 3, subparagraph 1a)]

Definition of the Cook Islands

4.12 The Cook Islands is defined to mean the territory of the Cook Islands. [Article 3, subparagraph 1b)]

Definition of competent authority

4.13 The 'competent authority' is the person or institution specifically authorised to perform certain actions under the Cook Islands agreement. For example, to notify each other of any significant changes to the tax law of their respective countries, Article 2 ( Taxes Covered ), to communicate for the purposes of Article 8 ( Mutual Agreement Procedure ) and to exchange information in accordance with Article 9 ( Exchange of Information ).

4.14 In the case of Australia, the competent authority is the Commissioner of Taxation (Commissioner) or an authorised representative of the Commissioner. In the case of the Cook Islands, the competent authority is the Collector of Inland Revenue or an authorised representative of the Collector. [Article 3, subparagraph 1c)]

Definition of contracting party

4.15 'Contracting Party' means Australia or the Cook Islands, as the context requires. [Article 3, subparagraph 1d)]

Definition of person

4.16 'Person' includes an individual, a company and any other body of persons [Article 3, subparagraph 1e)] . However, Article 8 ( Mutual Agreement Procedure ) is the only substantive article of the Cook Islands agreement that will affect persons that are non-individuals.

Definition of tax

4.17 'Tax' means Australian tax or Cook Islands tax, as the context requires. [Article 3, subparagraph 1f)] . See paragraphs 4.7 to 4.10 for taxes covered by the agreement.

Definition of transfer pricing adjustment

4.18 A transfer pricing adjustment is an adjustment made by the tax authorities of Australia or the Cook Islands to the profits of an enterprise, based on the application of domestic transfer pricing laws [Article 3, subparagraph 1g)] . For Australia, such laws are contained in Division 13 of Part III of the Income Tax Assessment Act 1936 (ITAA 1936).

Terms not specifically defined

4.19 A term that is not specifically defined in the Cook Islands agreement shall have (unless the context requires otherwise) the meaning that it has under the domestic law of the country applying the Cook Islands agreement at the time of its application. In that case, the term's domestic taxation law meaning will have precedence over any meaning it may have under that country's other domestic laws. [Article 3, paragraph 2]

Article 4 - Resident

4.20 This Article sets out the basis upon which the residential status of a person is to be determined for the purposes of the Cook Islands agreement. Residential status is a criterion for determining each country's taxing rights and is a necessary condition for the provision of relief under the Cook Islands agreement. In the case of Australia, a person's residence is determined according to Australia's taxation law [Article 4, subparagraph 1a)] . In the case of the Cook Islands, residence is determined according to the Cook Islands taxation law [Article 4, subparagraph 1b)] .

Special residency rules

4.21 A person is not a resident of a country, for the purposes of the Cook Islands agreement, if that person is liable to tax in that country in respect only of income from sources in that country [Article 4, paragraph 2] . In the Australian context, this would mean, for example, that Norfolk Island residents, who are generally only subject to Australian tax on Australian source income, are not residents of Australia for the purposes of the Cook Islands agreement. Accordingly, the Cook Islands will not have to forego tax in accordance with the Cook Islands agreement on income derived by Norfolk Island residents (which will not be subject to Australian tax).

Dual residents

4.22 Tie-breaker rules are included for determining residency of a person, for the purposes of the Cook Islands agreement, if the person qualifies as a resident of both countries in accordance with paragraph 1 of Article 4. In the case of an individual the rules, in order of application, are:

•

if the individual has a permanent home available to himself or herself in only one of the countries, the person is deemed to be a resident solely of that country [Article 4, subparagraph 3a)] ;

•

if the individual has a permanent home available in both countries or in neither, then the person's residential status takes into account their personal or economic relations with Australia and the Cook Islands, and the person is deemed for the purposes of the Cook Islands agreement to be a resident only of the country with which they have the closer personal and economic relations [Article 4, subparagraph 3a)] ;

•

if the individual has an habitual abode in either Australia or the Cook Islands the person is deemed to be a resident of that country [Article 4, subparagraph 3b)] ;

•

if the individual has a habitual abode in both countries, or of neither, the competent authorities will resolve the question of treaty residence by mutual agreement [Article 4, subparagraph 3c)] .

4.23 In the case of a non-individual, that is a company, partnership or other body or person, which would under paragraph 1 of Article 4 be a resident of both Australia and the Cook Islands, then the entity will be deemed to be a resident of the country in which the place of effective management is situated. [Article 4, paragraph 4]

4.24 In relation to Australia, a dual resident remains a resident for the purposes of Australian domestic law. Accordingly, that person remains liable to tax in Australian as a resident, insofar as the Cook Islands agreement allows.

Article 5 - Pensions and Retirement Annuities

4.25 Pensions and retirement annuities are taxable only by the country of which the recipient is a resident, provided such income is subject to tax in that country. If such income is not subject to tax in that country, the income may be taxed by the country from which the relevant payments were made. [Article 5, paragraph 1]

Meaning of retirement annuity

4.26 In the case of Australia, retirement annuity means a superannuation annuity payment within the meaning of the taxation laws of Australia [Article 5, subparagraph 2a)] . A superannuation annuity as defined by Regulation 995-1.01 of the Income Tax Assessment Regulations 1997 , which took effect from 1 July 2007, is a retirement annuity. In the case of the Cook Islands, 'retirement annuity' means an annuity payment which is not an approved annuity under the Cook Islands tax laws [Article 5, subparagraph 2b)] . This Article also allows for a retirement annuity to include other similar periodic payments agreed to by the competent authority [Article 5, subparagraph 2c)] .

Article 6 - Government Service

4.27 Salary and wage type income, other than government service pensions paid to an individual for services rendered to a government of one of the countries (including a political subdivision or local authority), is to be taxed only in that country. However, such remuneration will be taxable only in the other country if the services are rendered in that other country and:

•

the recipient is a resident of, and a national or citizen of, that other country; or

•

the recipient is a resident of that other country and did not become a resident of that country solely for the purpose of rendering the services (for example, if the recipient is a permanent resident of that other country).

[Article 6, paragraph 1]

Business income

4.28 Remuneration in respect of services rendered in connection with a trade or business carried on by a governmental authority is excluded from the scope of the Article. Such remuneration will remain subject to the domestic taxation laws of the two countries. [Article 6, paragraph 2]

Article 7 - Students

Exemption from tax

4.29 This Article applies to students or business apprentices who are temporarily present in one of the countries solely for the purpose of their education or training if they are, or immediately before the visit were, resident in the other country. In these circumstances, payments from abroad received by the students or business apprentices solely for their maintenance, education or training will be exempt from tax in the country visited. This will apply even though the student or apprentice may qualify as a resident of the country visited during the period of their visit. [Article 7]

Employment income

4.30 Where a Cook Islander student visiting Australia solely for educational purposes undertakes employment in Australia, for example, part-time work with a local employer, the income earned by that student as a consequence of that employment may be subject to tax in Australia.

4.31 For business apprentices, this Article only applies where the apprentice's remuneration consists solely of subsistence payments to cover training or maintenance. Remuneration for service, that is, salary equivalents, falls for consideration under domestic taxation law.

4.32 In the case of a Cook Islander business apprentice visiting Australia solely for training purposes, it may therefore be necessary to distinguish between remuneration for service and a payment for the apprentice's maintenance or training.

4.33 A payment for maintenance or training would not be expected to exceed the level of expenses likely to be incurred to ensure the apprentice's maintenance and training (that is, a subsistence payment). If the remuneration is similar to the amounts paid to persons who provide similar services who are not business apprentices (that is, salary equivalent), this would generally indicate that the payments constitute income from employment that would fall for consideration under domestic taxation law. Likewise, if that business apprentice undertakes any other employment in Australia, the income earned from that employment may be subject to tax in Australia.

4.34 Where a taxpayer received both exempt income and assessable income, the exempt income may in some cases be taken into account in determining the rate of tax payable on the assessable income. However, payments received from abroad for a student's or apprentice's maintenance, education or training will not be taken into account in determining the tax payable on the employment income that is subject to tax in Australia.

Article 8 - Mutual Agreement Procedure in Respect of Transfer Pricing Adjustments

4.35 This Article provides for consultation between the competent authorities of the two countries for the purpose of endeavouring to resolve disputes concerning transfer pricing adjustments purportedly made not in accordance with the arm's length principle. [Article 8, paragraph 2]

4.36 The term 'arm's length principle' refers to the requirement that businesses price their related party international dealings according to what truly independent parties acting independently would reasonably be expected to have done in the same situation. In Australia the Commissioner would apply the arm's length principle when reviewing business transactions in the context of Division 13 of Part III of the ITAA 1936.

4.37 A person wishing to use this mutual agreement procedure must present their case to the competent authority of their country of residence within three years of the first notification of the transfer pricing adjustment. This procedure operates independently of, and in addition to, domestic legal remedies available to taxpayers. [Article 8, paragraph 1]

Article 9 - Exchange of Information

4.38 This Article authorises and limits the exchange of information by the competent authorities to information that is foreseeably relevant to the administration of the Cook Islands agreement.

4.39 The exchange of information is subject to the provisions of the Agreement on the Exchange of Information with Respect to Taxes , which was signed by the two countries on 27 October 2009. After it takes effect, that agreement will provide for exchange of information that is foreseeably relevant to the administration of the taxation laws of the two countries. It also contains safeguards to protect taxpayers' rights. For example:

•

confidentiality rules to ensure that information exchanged is only disclosed to authorised recipients; and

•

limitations to ensure that the competent authorities do not exceed domestic laws and administrative procedures in the course of obtaining and supplying information.

Article 10 - Entry into Force

Date of entry into force

4.40 The Cook Islands agreement will enter into force on the date of the last exchange of diplomatic notes notifying that the domestic procedures to give it the force of law have been completed. In Australia, enactment of the legislation giving the Cook Islands agreement the force of law along with tabling the Cook Islands agreement in Parliament are prerequisites to the exchange of diplomatic notes. Entry into force is also conditional upon the related Agreement on the Exchange of Information with Respect to Taxes between the two countries being in force at that time.

Date of application in Australia

4.41 Following entry into force, the Cook Islands agreement will take effect in Australia in respect of any income year beginning on or after 1 July in the calendar year next following the date on which it enters into force. [Article 10, subparagraph 1a)]

Date of application in the Cook Islands

4.42 Following entry into force, the Cook Islands agreement will take effect in the Cook Islands in respect of any income year beginning on or after 1 January in the calendar year next following the date on which it enters into force. [Article 10, subparagraph 1b)]

Article 11 - Termination

4.43 The Cook Islands agreement is to continue in effect indefinitely. However, either country may give the other country written notice of termination of the agreement through diplomatic channels. [Article 11, paragraph 1]

Cessation in Australia

4.44 In the event of either country terminating the Cook Islands agreement, it would cease to be effective in Australia in the year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given. [Article 11, subparagraph 2a)]

Cessation for the Cook Islands

4.45 The Cook Islands agreement would correspondingly cease to be effective in the Cook Islands for any year of income beginning on or after 1 January in the calendar year next following that in which the notice of termination is given. [Article 11, subparagraph 2b)]

Cessation in other circumstances

4.46 The Cook Islands agreement will also terminate and cease to be effective if the Agreement on the Exchange of Information with Respect to Taxes between Australia and the Cook Islands is terminated. In that event, the Cook Islands Agreement would terminate on the first day of the month following the expiration of six months after receipt of notification of termination of the Agreement on the Exchange of Information with Respect to Taxes . [Article 11, paragraph 3]