International Tax Agreements Act 1953

Sch 11 and 11A substituted for Sch 11 by No 136 of 2007, s 3 and Sch 1 item 12, effective 3 September 2007. The convention came into force on 1 June 2009 - see Art 30 for rules concerning entry into force. Sch 11A formerly read:

SCHEDULE 11A - Protocol to French Agreement

PROTOCOL AMENDING THE AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE FRENCH REPUBLIC

ARTICLE 1

Article 2 of the Agreement shall be amended by:

(a) deleting subparagraph (1)(b) and substituting the following subparagraph:

" (b) " the term France " means the European and Overseas Departments of the French Republic and includes the territorial sea and, beyond that, those areas over which, in conformity with international law, the French Republic has sovereign rights with respect to the exploration and exploitation of the resources of the marine depths, their sea-bed and the overlying waters; "

; and

(b) adding after the word " company " (second occurring) in subparagraph (1)(e), of the English text only, the words " or body corporate " .

ARTICLE 2

Article 4 of the Agreement shall be amended by:

(a) adding after the word " property " in subparagraph (2)(g) the words " situated in Australia " ; and

(b) deleting the word " six " in subparagraph (2)(h) and substituting the word " twelve " .

ARTICLE 3

Article 5 of the Agreement shall be deleted and the following Article substituted:

" ARTICLE 5 Income from real property  
(1)
Income from real property, including income from an agricultural, pastoral or forestry property in France, may be taxed in the Contracting State in which that property is situated.

(2)
For the purposes of this Article, the term ' real property ' :

(a) in the case of Australia, has the meaning which it has under the laws of Australia, and shall also include:

(i) a lease of land and any other interest in or over land, whether improved or not;

(ii) a right to receive variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, oil or gas wells, quarries or other places of extraction or exploitation of natural resources; and

(b) in the case of France, means such property which, according to the laws of France, is immovable property and shall in any case include:

(i) property accessory to immovable property;

(ii) livestock and equipment used in agriculture and forestry;

(iii) rights to which the provisions of the general law respecting landed property apply;

(iv) usufruct of immovable property and rights to variable or fixed payments as consideration for the working of or the right to work mineral deposits, mineral sources and other natural resources.

Ships and aircraft shall not be regarded as immovable property.

(3)
The provisions of paragraph (1) shall apply to income derived from the direct use, letting or use in any other form or real property.

(4)
Where the ownership of shares or other corporate rights in a company entitles the owner of such shares or corporate rights to the enjoyment of immovable property held by the company and situated in France, the income from the direct use, letting or use in any other form of such right to enjoyment may be taxed in France.

(5)
The provisions of paragraph (1) and (3) shall also apply to income from real property of an enterprise and to income from real property used for the performance of independent personal services.

(6)
The provisions of paragraph (4) shall also apply to income of an enterprise from the right to enjoyment referred to in that paragraph and shall also apply to income from such a right to enjoyment that is used for the performance of independent personal services. "

ARTICLE 4

Article 9 of the Agreement shall be amended by:

(a) deleting paragraph (1) and substituting the following paragraph:

" (1) Dividends paid by a company which is a resident of Australia for the purposes of Australian tax, being dividends to which a resident of France is beneficially entitled, may be taxed in Australia, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends. "

; and

(b) deleting paragraph (5) and substituting the following paragraph:

" (5) Where a company which is a resident of a Contracting State carries on business in the other Contracting State through a permanent establishment situated in that other State, or, in the absence of a permanent establishment in that other State, derives income referred to in Article 5, 11 or 12 or in paragraph (2) of Article 16, that company may be subject in that other State, in accordance with its taxation law, to tax in addition to the tax payable by the company in respect of its taxable income (in this paragraph called the general income tax) the rate of which shall not exceed 15 per cent of the amount by which the taxable income exceeds the general income tax payable in respect of that taxable income. However, in the case of income to which paragraph (1) of Article 11 applies, the total amount of tax paid in that other State shall not exceed 10 per cent of the gross amount of that income. "

ARTICLE 5

Article 11 of the Agreement shall be amended by deleting paragraph (2) and substituting the following paragraph:

" (2) The term ' royalties ' in this Article means payments or credits, whether periodical or not, and however described or computed, to the extent to which they are made as consideration for:

(a) the use of, or the right to use, any copyright, patent, design or model, plan, secret formula or process, trademark, or other like property or right;

(b) the use of, or the right to use, any industrial, commercial or scientific equipment;

(c) the supply of scientific, technical, industrial or commercial knowledge or information;

(d) the supply of any assistance that is merely ancillary and subsidiary to, and is furnished as a means of enabling the application or enjoyment of, any such property or right as is mentioned in subparagraph (a), any such equipment as is mentioned in subparagraph (b) or any such knowledge or information as is mentioned in subparagraph (c), not being assistance by way of regular servicing;

(e) the use of, or the right to use:

(i) motion picture films;

(ii) films or video tapes for use in connection with television; or

(iii) tapes for use in connection with radio broadcasting; or

(f) total or partial forbearance in respect of the use or supply of any property or right referred to in this paragraph. "

ARTICLE 6

Article 17 of the Agreement shall be amended by:

(a) deleting paragraph (1) and substituting the following paragraph:

" (1) Subject to the provisions of paragraph (3) of Article 18, pensions and annuities paid to a resident of a Contracting State shall be taxable only in that State. "

; and

(b) adding after paragraph (4) the following paragraph:

" (5) Contributions paid by, or on behalf of, an individual resident of a Contracting State to a pension institution or superannuation fund that is recognized for tax purposes in the other Contracting State shall be treated in the same way for tax purposes in the first-mentioned State as contributions paid to a pension institution or superannuation fund that is recognized for tax purposes in the first-mentioned State, provided that the competent authority of the first-mentioned State agrees that the pension institution or superannuation fund corresponds to such pension institutions or superannuation funds as are recognized for tax purposes by that State. "

ARTICLE 7

Article 18 shall be amended by:

(a) deleting the heading and substituting the following heading:

" Government service "

;

(b) adding after the words " or annuity " in both paragraphs (1) and (2) the words " , or remuneration to which Article 19 applies " ;

(c) deleting paragraph (3) and substituting the following paragraphs:

" (3)

(a) Any pension paid by, or out of funds created by, a Contracting State or a political subdivision or a statutory body or local authority thereof to an individual in respect of services rendered to that State, subdivision, body or authority shall be taxable only in that State.

(b) However, such pension shall be taxable only in the other Contracting State if the individual is a resident of, and a national or citizen of, that Contracting State.

(4) This Article shall not apply to remuneration or pensions in respect of services rendered in connection with any trade or business carried on by a Government, political subdivision, body or authority referred to in paragraph (1), (2) or (3). "

ARTICLE 8

Article 19 shall be amended by deleting from paragraph (1) the words " shall be exempt from tax in that other State " and substituting the words " shall be taxed only in the first-mentioned State " .

ARTICLE 9

The following Article shall be inserted in the Agreement after Article 22:

" ARTICLE 22A Rules of Taxation  
Where conditions of commercial or financial relations between a person who is a resident of Australia and a person who is a resident of France differ from those which may be expected between independent persons dealing wholly independently with one another, nothing in the Agreement shall prevent a Contracting State, by application of its domestic law, from including in the profits of such persons and taxing accordingly the profits which, but for those conditions, might have been expected to have accrued to them. "

ARTICLE 10

The following Article shall be added to the Agreement after Article 27:

" ARTICLE 27A Miscellaneous  
If, in an agreement for the avoidance of double taxation that is made after 19 June 1989 between Australia and a third State, being a State that is a member of the Organisation for Economic Co-operation and Development,

(a) Australia agrees to limit the rate of its taxation:

(i) on dividends paid by a company which is a resident of Australia for the purposes of Australian tax to which a company that is a resident of the third State is entitled, to a rate less than that provided in paragraph (1) of Article 9; or

(ii) on interest arising in Australia to which a resident of the third State is entitled, to a rate less than that provided in paragraph (1) of Article 10; or

(iii) on royalties arising in Australia to which a resident of the third State is entitled, to a rate less than that provided in paragraph (1) of Article 11; or

(b) there is included a Non-Discrimination Article,

the Government of Australia shall immediately inform the Government of the French Republic in writing through the diplomatic channel and shall enter into negotiations with the Government of the French Republic, in the case of paragraph (a), to review the provisions specified in that paragraph in order to provide the same treatment for France as that provided for the third State and, in the case of paragraph (b), in order to provide the same treatment for France as that provided for the third State. "

ARTICLE 11

Each State shall notify the other of the completion of the procedures necessary under its laws for the entry into force of this Protocol which shall form an integral part of the Agreement. The Protocol shall enter into force on the date on which the later of these notifications is received, and:

(a) the provisions of this Protocol other than those specified in paragraphs (b) and (c) of this Article shall have effect:

(i) in Australia: in respect of income of any year of income beginning on or after the date on which this Protocol is signed; and

(ii) in France: in respect of income of any assessment year beginning on or after the date on which this Protocol is signed;

(b) Article 5 shall have effect in relation to income derived after the date on which this Protocol is signed; and

(c) paragraph (a) of Article 6 and paragraph (c) of Article 7 shall have effect in relation to pensions derived on or after 1 July 1987.

IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Protocol.

DONE in duplicate at Paris this 19th day of June One Thousand Nine Hundred and Eighty-nine in the English and French languages, both texts being equally authoritative.

E.R. POCOCK FOR THE GOVERNMENT OF AUSTRALIA

E. AVICE FOR THE GOVERNMENT OF THE FRENCH REPUBLIC