International Tax Agreements Act 1953
SECTION 1
1
SHORT TITLE
This Act may be cited as the International Tax Agreements Act 1953.
SECTION 2
2
COMMENCEMENT
This Act shall come into operation on the day on which it receives the Royal Assent. SECTION 3 INTERPRETATION 3(1)
In this Act:
(a) income tax imposed as such by an Act; or
(b) fringe benefits tax imposed by the Fringe Benefits Tax Act 1986.
3(2)
For the purpose of this Act and the Assessment Act, a reference in an agreement to profits of an activity or business shall, in relation to Australian tax, be read, where the context so permits, as a reference to taxable income derived from that activity or business.
3(2A)
After the commencement of this subsection, a reference in an agreement to income from shares, or to income from other rights participating in profits, does not include a reference to a return on a debt interest (as defined in Subdivision 974-B of the Income Tax Assessment Act 1997).
3(3)
For the purposes of this Act, an amount of income derived by a person, being income other than interest or royalties, shall be deemed to be income attributable to interest or royalties, as the case may be:
(a) if the person derived the amount of income by reason of being beneficially entitled to an amount representing the interest or royalties; or
(b) if the person derived the amount of income as a beneficiary in a trust estate and the amount of income can be attributed, directly or indirectly, to the interest or royalties or to an amount that is to be deemed, by any application or successive applications of this subsection, to be an amount of income attributable to the interest or royalties.
3(4)
Where a beneficiary in a trust estate, other than a trust estate that is a prescribed trust estate, in relation to the year of income, is presently entitled to income of the trust estate, that income shall, for the purposes of this Act, be deemed to be an amount of income derived by the person.
3(5)
To the extent that an agreement provides that the expression immovable property has the meaning it has under the law of Australia, that expression, for the purposes of that agreement, includes real property.
3(6)
(Repealed by No 143 of 2007)
3(7)
(Repealed by No 45 of 2011)
3(7A)
(Repealed by No 45 of 2011)
3(8)
Where, by virtue of a provision of an agreement, the expression royalties as used in, or in a particular provision of, that agreement has the meaning that that expression has under the law of Australia relating to income tax, that expression has, for the purposes of that agreement or of that particular provision, as the case may be, the meaning that that expression has by virtue of subsection 6(1) of the Income Tax Assessment Act 1936.
3(9)
Where, by virtue of a provision of an agreement, expressions used in, or in a particular provision of, that agreement and not otherwise defined for the purposes of that agreement or of that particular provision have the meanings that those expressions have under the law of Australia relating to income tax, subsection (8) does not affect the interpretation of that agreement or of that particular provision, as the case may be, in relation to the meaning of expressions other than the expression royalties .
3(10)
For the purposes of this Act, Medicare levy shall be deemed to be income tax and to be imposed as such and, unless the contrary intention appears, references to income tax or tax shall be construed accordingly.
3(11)
Where:
(a) a beneficiary of a trust estate (not being a prescribed trust estate) who is a resident of a country with which, or with the government of which, Australia, or the Government of Australia, has made an agreement before the commencement of this subsection is presently entitled, either directly or through one or more interposed trust estates, to a share of the income of the trust estate derived from the carrying on by the trustee in Australia of a business through a permanent establishment in Australia; and
(b) under the agreement, the income is to be dealt with in accordance with the article (in this subsection referred to as the business profits article ) of the agreement relating to the taxing of income of an enterprise of a Contracting State where the enterprise carries on a business in the other Contracting State through a permanent establishment in the other Contracting State;
(c) the beneficiary shall be deemed to carry on in Australia, through a permanent establishment in Australia, the business carried on in Australia by the trustee; and
(d) the beneficiary's share of the income shall be deemed to be attributable to that permanent establishment.
3(11A)
If:
(a) the licensee of a spectrum licence (within the meaning of the Radiocommunications Act 1992), or a person authorised under section 68 of that Act by the licensee, derives income from operating radiocommunications devices (within the meaning of that Act) under the licence or from authorising others to do so; and
(b) the licensee or authorised person is a resident of a country (other than Australia), or a territory (other than an Australian-controlled territory), to whose residents an agreement applies; and
(c) under the agreement, the income is to be dealt with in accordance with the business profits article of the agreement referred to in paragraph 3(11)(b);
(d) the licensee or authorised person is taken to carry on a business, through a permanent establishment, in Australia; and
(e) the income is taken to be attributable to that permanent establishment.
3(12)
In subsections (11) and (11A):
SECTION 3AAA DEFINITIONS - CURRENT AGREEMENTS 3AAA(1)
In this Act:
(a) the Agreement between the Government of Australia and the Government of the Argentine Republic for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that agreement;
(a) the Convention between Australia and the Republic of Chile for the avoidance of double taxation with respect to taxes on income and fringe benefits and the prevention of fiscal evasion; and
(b) the protocol to that convention;
(a) the Agreement between the Government of Australia and the Government of Finland for the avoidance of double taxation with respect to taxes on income and the prevention of fiscal evasion; and
(b) the protocol to that agreement;
(a) the Convention between the Government of Australia and the Government of the French Republic for the avoidance of double taxation with respect to taxes on income and the prevention of fiscal evasion; and
(b) the protocol to that convention;
(a) the Agreement between Australia and the Federal Republic of Germany for the elimination of double taxation with respect to taxes on income and on capital and the prevention of fiscal evasion and avoidance; and
(b) the protocol to that agreement;
(a) the Convention between Australia and Iceland for the elimination of double taxation with respect to taxes on income and the prevention of tax evasion and avoidance; and
(b) the protocol to that convention;
(a) the Convention between the Government of Australia and the Government of the State of Israel for the elimination of double taxation with respect to taxes on income and the prevention of tax evasion and avoidance; and
(b) the protocol to that convention;
(a) the Convention between Australia and the Republic of Italy for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that convention;
(a) the Convention between Australia and Japan for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that convention; and
(c) the exchange of notes relating to that convention;
(a) the Convention between the Government of Australia and the Government of the Republic of Korea for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that convention;
(a) the protocol amending the Malaysian agreement (as amended by the Malaysian protocol (No. 1)); and
(b) the exchange of letters relating to that protocol;
(a) the Agreement between the Government of Australia and the Government of the United Mexican States for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that agreement;
(a) the Agreement between Australia and the Kingdom of the Netherlands for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that agreement;
(a) the Agreement between Australia and Romania for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that agreement;
(a) the Agreement between the Government of Australia and the Government of the Russian Federation for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that agreement;
(a) the Agreement between the Government of Australia and the Government of the Republic of South Africa for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that agreement;
(a) the Agreement between Australia and the Kingdom of Spain for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that agreement;
(a) the Convention between Australia and the Swiss Confederation for the Avoidance of Double Taxation with respect to Taxes on Income; and
(b) the protocol to that convention;
(a) the Agreement between the Australian Commerce and Industry Office and the Taipei Economic and Cultural Office concerning the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the annex to that agreement;
(a) the Convention between the Government of Australia and the Government of the Republic of Turkey for the avoidance of double taxation with respect to taxes on income and the prevention of fiscal evasion; and
(b) the protocol to that convention;
(a) the Convention between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital gains; and
(b) the exchange of notes relating to that convention;
3AAA(2)
For the purposes of this Act, when construing the English language text of the French convention:
(a) words in the singular include the plural; and
(b) words in the plural include the singular;
SECTION 3AAB
DEFINITIONS - AGREEMENTS FOR EARLIER PERIODS
3AAB(1)
In this Act:
(a) the Agreement between Australia and Finland for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that agreement;
(a) the Agreement between the Commonwealth of Australia and the Federal Republic of Germany for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital and to certain other taxes; and
(b) the protocol to that agreement;
(a) the Agreement between the Commonwealth of Australia and Japan for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that agreement;
(a) the Convention between Australia and the Kingdom of Norway for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital; and
(b) the protocol to that convention;
(a) the Agreement between Australia and Switzerland for the avoidance of double taxation with respect to taxes on income; and
(b) the protocol to that agreement;
3AAB(2)
For the purposes of this Act, when construing the English language texts of the French 1976 agreement and the Japanese 1969 agreement:
(a) words in the singular include the plural; and
(b) words in the plural include the singular;
3AAB(3)
For the purposes of this Act, a reference in the Japanese 1969 agreement to an area adjacent to Australia as specified in the Second Schedule to the Petroleum (Submerged Lands) Act 1967-1968 includes a reference to an area adjacent to Australia as specified in Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
SECTION 3AA
SOURCE OF INCOME FROM FUNDS MANAGEMENT ACTIVITIES
3AA(1)
This section applies to a beneficiary of a widely held unit trust if:
(a) the beneficiary is a resident of a country (other than Australia) for the purposes of an agreement that is given the force of law under this Act; and
(b) the beneficiary is presently entitled, either:
3AA(2)
In working out for the purposes of the Assessment Act whether the funds management income of the beneficiary is attributable to sources in Australia, these provisions (the source of income provisions ) do not apply:
(a) Article 21 of the United Kingdom convention;
(b) a corresponding provision of another agreement;
(c) subsections 11(2), 11S(2) and 11ZF(2) of this Act, and any provision of this Act of similar effect enacted after the commencement of this section;
(d) section 764-5 of the Income Tax Assessment Act 1997.
3AA(3)
However, the source of income provisions do apply to the extent to which the income derived from the carrying on by the trustee of funds management activities is adjusted under:
(a) Article 7(2) or 9(1) of the United Kingdom convention; or
(b) a corresponding provision of another agreement.
3AA(4)
In this section:
(a) a managed investment scheme (as defined by section 9 of the Corporations Act 2001) that is a widely held unit trust; or
(b) a managed investment scheme (as so defined) that is a unit trust that is closely held by one or more of these:
SECTION 3A
ALIENATION OF REAL PROPERTY THROUGH INTERPOSED ENTITIES
3A(1)
[Application]
(a) an agreement makes provision in relation to income, profits or gains from the alienation or disposition of shares or comparable interests in companies, or of interests in other entities, whose assets consist wholly or principally of real property (within the meaning of the agreement) or other interests in relation to land; and
(b) this Act gave that provision the force of law before 27 April 1998. 3A(2) [Scope]
SECTION 4
INCORPORATION OF ASSESSMENT ACT
4(1)
Subject to subsection (2), the Assessment Act is incorporated and shall be read as one with this Act.
4(2)
The provisions of this Act have effect notwithstanding anything inconsistent with those provisions contained in the Assessment Act (other than the provisions covered by subsection (3)) or in an Act imposing Australian tax.
4(3)
This subsection covers the following provisions: (a) Part IVA of the Income Tax Assessment Act 1936; (b) Subdivision 195-C (Corporate collective investment vehicles) of the Income Tax Assessment Act 1997.
SECTION 4AA INCORPORATION OF FRINGE BENEFITS TAX ASSESSMENT ACT 4AA(1)
Subject to subsection (2), the Fringe Benefits Tax Assessment Act 1986 is incorporated and is to be read as one with this Act.
4AA(2)
The provisions of this Act have effect in spite of anything inconsistent with those provisions contained in the Fringe Benefits Tax Assessment Act 1986 (other than section 67 of that Act).
SECTION 4A
TREASURER TO NOTIFY ENTRY INTO FORCE OF AGREEMENTS, EXCHANGES OF LETTERS UNDER AGREEMENTS ETC.
4A(1)
This section applies to the following events:
(a) the entry into force of an agreement;
(b) the giving of notice of termination of an agreement;
(c) the exchange of letters under a provision of an agreement;
(d) the exchange of instruments of ratification under an agreement;
(e) the confirmation of receipt of a notice under a provision of an agreement;
(f) the occurrence of any similar thing.
4A(2)
As soon as practicable after any such event occurs, the Treasurer must, by notifiable instrument, publish particulars of the event.
SECTION 5
CURRENT AGREEMENTS HAVE THE FORCE OF LAW
5(1)
Subject to this Act, on and after the date of entry into force of a provision of an agreement mentioned below, the provision has the force of law according to its tenor.
5(2)
Subsection (1) does not apply to Article 23 of the United States convention (as amended by the United States protocol (No. 1)).
5(3)
The operation of a provision of an agreement provided for by subsection (1) is subject to anything inconsistent with the provision contained in a law of the Commonwealth, or of a State or Territory, that imposes a tax other than Australian tax, unless expressly provided otherwise in that law.
SECTION 5A
5A
EARLIER AGREEMENTS CONTINUE TO HAVE THE FORCE OF LAW
The provisions of each of the agreements mentioned below, so far as those provisions affect Australian tax, continue to have the force of law for tax in respect of income or fringe benefits in relation to which the agreement remains effective.
SECTION 6
6
CONVENTION WITH UNITED STATES OF AMERICA
The United States convention (as amended by the United States protocol (No. 1)) does not subject to Australian tax any interest paid by a resident of Australia to a resident of the United States of America that, apart from that convention, would not be subject to Australian tax.
6AA
(Repealed) SECTION 6AA PROTOCOL WITH THE UNITED STATES OF AMERICA
(Repealed by No 45 of 2011)
SECTION 6A
6A
CONVENTION WITH CANADA
Subject to this Act, on and after the date of entry into force of the Canadian convention, the provisions of the convention, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law:
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 July 1975 and in relation to which the convention remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July 1975 and in relation to which the convention remains effective.
6AB
(Repealed) SECTION 6AB PROTOCOL WITH CANADA
(Repealed by No 45 of 2011)
SECTION 6B
CONVENTION WITH NEW ZEALAND
6B(1)
This section applies in relation to: (a) income described in paragraph 3 of Article 17 of the New Zealand convention, derived in respect of personal activities exercised by a sportsperson; and (b) income derived by an individual covered by subsection (4) in respect of a sportsperson, if that income is derived from providing services mentioned in paragraph (4)(a) to:
6B(2)
Subsection (3) applies in determining whether an individual was present in Australia on a particular day, for the purposes of determining whether the condition in subparagraph 2(a) of Article 14 of the New Zealand convention was met in relation to: (a) the 2020-21 year of income; or (b) the 2021-22 year of income.
6B(3)
Treat the individual as not being present in Australia on that day if it was impractical, because of measures or arrangements related to the coronavirus known as COVID-19, for the individual to leave Australia on that day and continue to: (a) exercise the personal activities mentioned in paragraph (1)(a); or (b) provide the services mentioned in paragraph (1)(b).
6B(4)
This subsection covers, in respect of a sportsperson, an individual who: (a) provides any of the following services to the sportsperson or to a recognised team of which the sportsperson is a member:
6B(5)
In this section:
6C
(Repealed) SECTION 6C PREVIOUS NEW ZEALAND AGREEMENTS
(Repealed by No 45 of 2011)
SECTION 7
7
AGREEMENT WITH SINGAPORE
Subject to this Act, the provisions of the Singaporean agreement, so far as those provisions affect Australian tax, have the force of law:
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 July 1969, and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of the year of income that commences on 1 July 1969, or of a subsequent year of income in relation to which the agreement remains effective.
7A
(Repealed) SECTION 7A FIRST PROTOCOL WITH SINGAPORE
(Repealed by No 45 of 2011)
7B
(Repealed) SECTION 7B SECOND PROTOCOL WITH SINGAPORE
(Repealed by No 45 of 2011)
8
(Repealed) SECTION 8 CONVENTION WITH JAPAN
(Repealed by No 45 of 2011)
9
(Repealed) SECTION 9 THE 2006 FRENCH CONVENTION
(Repealed by No 45 of 2011)
9A
(Repealed) SECTION 9A PREVIOUS FRENCH AGREEMENTS ETC
(Repealed by No 45 of 2011)
9B
(Repealed) SECTION 9B PROTOCOL WITH FRANCE
(Repealed by No 136 of 2007)
10
(Repealed) SECTION 10 AIRLINE PROFITS AGREEMENT WITH ITALY
(Repealed by No 45 of 2011)
SECTION 10A
10A
CONVENTION WITH ITALY
Subject to this Act, on and after the date of entry into force of the Italian convention, the provisions of the convention, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 July 1976 and in relation to which the convention remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July 1976 and in relation to which the convention remains effective.
SECTION 11
EARLIER AGREEMENT WITH GERMANY
11(1)
Subject to this Act, the provisions of the German 1972 agreement, so far as those provisions affect Australian tax, continue to have the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 July 1971 and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of the year of income that commenced on 1 July 1971 and of a subsequent year of income in relation to which the agreement remains effective.
11(2)
For the purposes of the Assessment Act, income that:
(a) is derived by a person who is a resident of the Federal Republic of Germany for the purposes of the German 1972 agreement; and
(b) is income in relation to which the agreement remains effective; and
(c) is income that, under Articles 6 to 8 and 10 to 16 of the agreement, may be taxed in Australia;
11(3)
(Repealed by No 64 of 2016)
SECTION 11A
11A
AGREEMENT WITH THE NETHERLANDS
For the purposes of the Assessment Act, income from a lease of land, income from any other direct interest in or over land, whether or not improved, and income from debt-claims of every kind, excluding bonds or debentures, secured by mortgage of real property or of any other direct interest in or over land, being income that under Article 6 of the Netherlands agreement (as amended by the Netherlands protocol (No. 2)) is to be regarded as income from real property, shall be deemed to be derived from sources in the place in which the land to which the lease, other direct interest or mortgage relates is situated.
11AA
(Repealed) SECTION 11AA SECOND PROTOCOL WITH THE KINGDOM OF THE NETHERLANDS
(Repealed by No 45 of 2011)
11B
(Repealed) SECTION 11B AIRLINE PROFITS AGREEMENT WITH THE HELLENIC REPUBLIC
(Repealed by No 45 of 2011)
SECTION 11C
11C
AGREEMENT WITH BELGIUM
Subject to this Act, on and after the date of entry into force of the Belgian agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 January in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective.
11CA
(Repealed) SECTION 11CA FIRST PROTOCOL WITH THE KINGDOM OF BELGIUM
(Repealed by No 45 of 2011)
11CB
(Repealed) SECTION 11CB SECOND PROTOCOL WITH THE KINGDOM OF BELGIUM
(Repealed by No 45 of 2011)
SECTION 11D
11D
AGREEMENT WITH THE PHILIPPINES
Subject to this Act, on and after the date of entry into force of the Philippine agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 January in the calendar year in which the agreement enters into force and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year in which the agreement enters into force and in relation to which the agreement remains effective.
SECTION 11E
11E
EARLIER AGREEMENT WITH SWITZERLAND
Subject to this Act, the provisions of the Swiss 1980 agreement, so far as those provisions affect Australian tax, continue to have the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 January 1979 and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of the year of income that commenced on 1 July 1979 and of a subsequent year of income in relation to which the agreement remains effective.
SECTION 11F
AGREEMENT WITH MALAYSIA
11F(1)
Subject to this Act, on and after the date of entry into force of the Malaysian agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 July 1979 and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income that commenced on or after 1 July 1979 and in relation to which the agreement remains effective.
11F(2)
The Malaysian agreement, as amended by:
(a) the Malaysian protocol (No. 1); and
(b) the Malaysian protocol (No. 2); and
(c) the Malaysian protocol (No. 3);
11F(3)
(Omitted by No 165 of 1989)
11F(4)
(Repealed by No 45 of 2011)
11F(5)
(Omitted by No 165 of 1989)
SECTION 11FA
FIRST PROTOCOL WITH MALAYSIA
11FA(1)
(Repealed by No 45 of 2011)
11FA(2)
Nothing in section 170 of the Income Tax Assessment Act 1936 prevents the amendment of an assessment made before the commencement of this section for the purpose of giving effect to the Malaysian protocol (No. 1).
11FA(3)
Nothing in former Division 19 of Part III of the Income Tax Assessment Act 1936 prevents the amendment of a determination made, or taken to have been made, under that Division before the commencement of this section for the purpose of giving effect to the Malaysian protocol (No. 1).
SECTION 11FB
SECOND PROTOCOL WITH MALAYSIA
11FB(1)
(Repealed by No 45 of 2011)
11FB(2)
Nothing in section 170 of the Income Tax Assessment Act 1936 prevents the amendment of an assessment made before the commencement of this section for the purpose of giving effect to the Malaysian protocol (No. 2).
11FB(3)
Nothing in former Division 19 of Part III of the Income Tax Assessment Act 1936 prevents the amendment of a determination made, or taken to have been made, under that Division before the commencement of this section for the purpose of giving effect to the Malaysian protocol (No. 2).
SECTION 11G
11G
AGREEMENT WITH SWEDEN
Subject to this Act, on and after the date of entry into force of the Swedish agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 January in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective.
SECTION 11H
AGREEMENT WITH DENMARK
11H(1)
Subject to this Act, on and after the date of entry into force of the Danish agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law- (a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 January in the calendar year immediately following that in which the agreement enters into force and in relation to which theagreement remains effective; and (b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective.
11H(2)
(Omitted by No 165 of 1989)
11H(3)
Where an amount of tax credit is to be treated as assessable income of a taxpayer in accordance with paragraph (7) of Article 10 of the Danish agreement- (a) the amount of the tax credit shall be included in the assessable income of the taxpayer of the year of income in which the dividend to which the tax credit relates is paid; and (b) the amount of the tax credit shall be added to the amount of the dividend to which the tax credit relates and the sum of the two amounts shall be deemed to be one dividend for the purposes of this Act and the Assessment Act.
SECTION 11J
11J
AGREEMENT WITH INDIA
The Indian agreement (as amended by the Indian protocol (No. 1)) does not have the effect of subjecting to Australian tax any payments or credits, whether periodical or not, and however described or computed, to the extent to which they: (a) are made as consideration for the rendering of any services covered by paragraph 12(3)(g) of that agreement (as amended); and (b) are not royalties (within the meaning of the Income Tax Assessment Act 1936); and (c) would, apart from paragraph 12(3)(g) and Article 23 of that agreement (as amended), not be subject to Australian tax.
SECTION 11K
11K
AGREEMENT WITH IRELAND
Subject to this Act, on and after the date of entry into force of the Irish agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 July in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective.
SECTION 11L
11L
CONVENTION WITH KOREA
Subject to this Act, on and after the date of entry into force of the Korean convention, the provisions of the convention, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 January 1982 and in relation to which the convention remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July 1982 and in relation to which the convention remains effective.
11M
(Repealed) SECTION 11M THE 2006 NORWEGIAN CONVENTION
(Repealed by No 45 of 2011)
11MA
(Repealed) SECTION 11MA THE 1982 NORWEGIAN CONVENTION
(Repealed by No 45 of 2011)
SECTION 11N
11N
AGREEMENT WITH MALTA
Subject to this Act, on and after the date of entry into force of the Maltese agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 January in the calendar year next following that in which the agreement enters into force and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year next following that in which the agreement enters into force and in relation to which the agreement remains effective.
11P
(Repealed) SECTION 11P THE 2006 FINNISH AGREEMENT
(Repealed by No 45 of 2011)
11PA
(Repealed) SECTION 11PA PREVIOUS FINNISH AGREEMENTS ETC
(Repealed by No 45 of 2011)
SECTION 11Q
11Q
AIRLINE PROFITS AGREEMENT WITH CHINA
Subject to this Act, on and after the date of entry into force of the Chinese airline profits agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law in relation to tax in respect of income derived on or after 1 July 1984 and in relation to which the agreement remains effective.
SECTION 11R
11R
AGREEMENT WITH AUSTRIA
Subject to this Act, on and after the date of entry into force of the Austrian agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 January in the calendar year next following that in which the agreement enters into force and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year next following that in which the agreement enters into force and in relation to which the agreement remains effective.
SECTION 11S
AGREEMENT WITH CHINA
11S(1)
(Repealed by No 45 of 2011)
11S(2)
For the purposes of the Assessment Act, income, profits or gains derived by a person who is a resident of China for the purposes of the Chinese agreement, being income, profits or gains that under Articles 6 to 8, 10 to 17 and 19 to 22 of the agreement may be taxed in Australia, are taken to be derived from sources in Australia.
11S(3)
The provisions of the Chinese agreement do not have the effect of subjecting to Australian tax any interest or royalties paid by a resident of Australia to a resident of China that, apart from that agreement, would not be subject to Australian tax.
11T
(Repealed) SECTION 11T AGREEMENT WITH THE INDEPENDENT STATE OF PAPUA NEW GUINEA
(Repealed by No 45 of 2011)
11U
(Repealed) SECTION 11U AGREEMENT WITH THAILAND
(Repealed by No 45 of 2011)
Hide history note
(Repealed by No 45 of 2011)
11W
(Repealed) SECTION 11W AGREEMENT WITH FIJI
(Repealed by No 45 of 2011)
11X
(Repealed) SECTION 11X AGREEMENT WITH THE REPUBLIC OF HUNGARY
(Repealed by No 45 of 2011)
11Y
(Repealed) SECTION 11Y AGREEMENT WITH KIRIBATI
(Repealed by No 45 of 2011)
11Z
(Repealed) SECTION 11Z AGREEMENT WITH THE REPUBLIC OF INDIA
(Repealed by No 45 of 2011)
SECTION 11ZA
11ZA
AGREEMENT WITH POLAND
The provisions of the Polish agreement do not have the effect of subjecting to Australian tax any interest or royalties paid by a resident of Australia to a resident of Poland that, apart from that agreement, would not be subject to Australian tax.
11ZB
(Repealed) SECTION 11ZB AGREEMENT WITH THE REPUBLIC OF INDONESIA
(Repealed by No 45 of 2011)
11ZC
(Repealed) SECTION 11ZC AGREEMENT WITH THE SOCIALIST REPUBLIC OF VIETNAM
(Repealed by No 45 of 2011)
SECTION 11ZCA
11ZCA
EXCHANGE OF NOTES BETWEEN AUSTRALIA AND VIETNAM
The Commissioner may amend an assessment made before the date of entry into force of the Vietnamese notes (No. 1) for the purpose of giving effect to those notes.
11ZD
(Repealed) SECTION 11ZD AGREEMENT WITH THE KINGDOM OF SPAIN
(Repealed by No 45 of 2011)
11ZE
(Repealed) SECTION 11ZE AGREEMENT WITH THE CZECH REPUBLIC
(Repealed by No 45 of 2011)
SECTION 11ZF
AGREEMENT WITH TAIPEI ECONOMIC AND CULTURAL OFFICE
11ZF(1)
(Repealed by No 45 of 2011)
11ZF(2)
For the purposes of the Assessment Act, if:
(a) a person derives income, profits or gains; and
(b) for the purposes of the Taipei agreement, the person is a resident of the foreign territory; and
(c) under any of Articles 6 to 8, 10 to 17 and 19 to 21 of the agreement, the income, profits or gains may be taxed in the Australian territory;
11ZF(3) [Income deemed derived from the foreign territory]
(a) a person derives income, profits or gains; and
(b) for the purposes of the agreement, the person is a resident of the Australian territory; and
(c) under any of Articles 6 to 8, 10 to 17 and 19 to 21 of the agreement, the income, profits or gains may be taxed in the foreign territory;
The provisions of the Taipei agreement do not have the effect of subjecting to Australian tax any interest or royalties paid by a resident of the Australian territory to a resident of the foreign territory that, apart from the agreement, would not be subject to Australian tax.
11ZF(5)
Section 170 of the Income Tax Assessment Act 1936 does not prevent the amendment of an assessment made before the commencement of this section for the purpose of giving effect to the Taipei agreement.
11ZF(6)
If:
(a) an exchange of letters takes place for the purposes of paragraph 2 of the Annex mentioned in paragraph (b) of the definition of Taipei agreement in subsection 3AAA(1); and
(b) as a result of the exchange, income, profits or gains derived by an organisation before the exchange become taxable under paragraph 2 of the Annex solely in the Australian territory or solely in the foreign territory; and
(c) before the exchange and whether before or after the commencement of this section, an assessment was made in which the income, profits or gains were not taxed in that way;
11ZF(7)
In this section:
11ZG
(Repealed) SECTION 11ZG AGREEMENT WITH THE REPUBLIC OF SOUTH AFRICA
(Repealed by No 45 of 2011)
11ZGA
(Repealed) SECTION 11ZGA PROTOCOL WITH THE REPUBLIC OF SOUTH AFRICA
(Repealed by No 45 of 2011)
11ZH
(Repealed) SECTION 11ZH AGREEMENT WITH THE SLOVAK REPUBLIC
(Repealed by No 45 of 2011)
SECTION 11ZI
11ZI
ARGENTINE AGREEMENT
Nothing in section 170 of the Income Tax Assessment Act 1936 prevents the amendment of an assessment made before the commencement of this section for the purpose of giving effect to the Argentine agreement.
11ZJ
(Repealed) SECTION 11ZJ AGREEMENT WITH ROMANIA
(Repealed by No 45 of 2011)
11ZK
(Repealed) SECTION 11ZK AGREEMENT WITH RUSSIA
(Repealed by No 45 of 2011)
11ZL
(Repealed) SECTION 11ZL AGREEMENT WITH MEXICO
(Repealed by No 45 of 2011)
11ZM
(Repealed) SECTION 11ZM AGREEMENT WITH THE BRITISH VIRGIN ISLANDS
(Repealed by No 45 of 2011)
11ZN
(Repealed) SECTION 11ZN AGREEMENT WITH THE ISLE OF MAN
(Repealed by No 45 of 2011)
11ZO
(Repealed) SECTION 11ZO AGREEMENT WITH JERSEY
(Repealed by No 45 of 2011)
12
(Repealed) SECTION 12 PROVISIONS RELATING TO CERTAIN INCOME DERIVED FROM SOURCES IN CERTAIN COUNTRIES
(Repealed by No 51 of 1986)
13
(Repealed) SECTION 13 DEDUCTIONS FOR UNITED KINGDOM TAX NOT TO BE TAKEN INTO ACCOUNT IN CALCULATING AMOUNT OF DIVIDEND, INTEREST OR ROYALTY
(Repealed by No 51 of 1986)
14
(Repealed) SECTION 14 PROVISIONS RELATING TO CREDITS FOR FOREIGN TAX
(Repealed by No 51 of 1986) 15 (Repealed) SECTION 15 ASCERTAINMENT OF AUSTRALIAN TAX
(Repealed by No 51 of 1986)
SECTION 16
REBATES OF EXCESS TAX ON INCOME INCLUDED IN ASSESSABLE INCOME
16(1)
[Application of section]
16(3)
[Rebate allowed in the assessment]
16(4)
[Rebate must not exceed tax payable]
16(5)
(Repealed by No 88 of 2009)
17 (Repealed) SECTION 17 REBATES OF EXCESS TAX ON DIVIDENDS
(Repealed by No 3 of 1968) SECTION 17A WITHHOLDING TAX 17A(1)
Where a provision of an agreement limits the amount of Australian tax payable in respect of a dividend or a royalty, being a dividend or a royalty in respect of which withholding tax is payable, and the amount of that withholding tax exceeds the limit specified in the agreement, the liability of the taxpayer for the withholding tax shall be reduced by an amount equal to the amount of the excess.
17A(2)
Where the liability of a taxpayer for withholding tax payable in respect of a unit trust dividend would have been reduced in pursuance of subsection (1) if that unit trust dividend had been a dividend paid to the taxpayer by a company that is a resident, that liability shall be reduced by an amount equal to the amount by which the liability would have been reduced if the unit trust dividend had been a dividend paid to the taxpayer by a company that is a resident.
17A(3)
In subsection (2):
17A(4)
If:
(a) a provision ( basic royalty provision ) of an agreement is covered by either of the following subparagraphs:
(b) another provision of the agreement expressly excludes particular royalties ( excluded royalties ) from the scope of the basic royalty provision;
17A(5)
Section 128B of the Income Tax Assessment Act 1936 (which deals with liability for withholding tax) does not apply to the payment of a royalty as defined in subsection 6(1) of that Act if:
(a) the royalty is paid to a person who is a resident of a Contracting State or territory (other than Australia) for the purposes of an agreement; and
(b) the agreement does not treat the amount paid as a royalty.
17B (Repealed) SECTION 17B INTEREST PAID BY A COMPANY TO A PERSON RESIDENT IN THE UNITED KINGDOM
(Repealed by No 123 of 2003) SECTION 18 SOURCE OF DIVIDENDS 18(1)
Where a company is not a resident of Australia but, for the purposes of a law of a country with which, or with the government of which, an agreement has been made (being a law which imposes foreign tax), is resident in that other country, a dividend paid by the company shall, for the purposes of the agreement, be deemed to be derived from a source in that country.
18(2)
Subsection (1) does not limit the operation of a provision of an agreement by virtue of which a dividend is deemed to be derived from a source outside Australia.
19 (Repealed) SECTION 19 CERTAIN DIVIDENDS PAID TO UNITED KINGDOM RESIDENTS
(Repealed by No 3 of 1968) 19A (Repealed) SECTION 19A CERTAIN FOREIGN CONTRACTORS DEEMED NOT TO BE TRADING THROUGH PERMANENT ESTABLISHMENTS IN AUSTRALIA
(Repealed by No 57 of 1983) SECTION 20 COLLECTION OF TAX DUE TO THE UNITED STATES OF AMERICA 20(1)
The purpose of this section is to enable the Government of Australia to give effect to its obligation under paragraph (5) of Article 25 of the United States convention (as amended) and accordingly the amounts of United States tax to which this section applies are amounts of United States tax the collection of which is necessary in order to ensure that the benefit of exemptions from United States tax, or of reductions in rates of United States tax, provided for by the convention is not received by a person not entitled to that benefit.
20(2)
Where a person is liable to pay an amount of United States tax to which this section applies, there is payable by that person to the Commissioner as a debt due to the Queen on behalf of Australia an amount equivalent to that amount, and the amount so payable may be sued for and recovered in any court of competent jurisdiction by the Commissioner, a Second Commissioner or a Deputy Commissioner suing in his or her official name.
20(3)
An amount payable to the Commissioner under the last preceding subsection may be collected by the Commissioner under section 218 of the Assessment Act and, for that purpose, a reference in that section to a taxpayer shall be read as a reference to the person by whom that amount is payable and a reference to an amount due by a taxpayer in respect of tax shall be read as a reference to the amount so payable.
20(4)
The Commissioner, a Second Commissioner or a Deputy Commissioner may, by writing under his or her hand, certify-
(a) that, on a date specified in the certificate, a person specified in the certificate was liable to pay an amount of United States tax;
(b) that that amount was an amount of United States tax to which this section applies; and
(c) that an amount specified in the certificate is an amount equivalent to the amount of United States tax;
20(5)
The Commissioner shall pay to the Government of the United States of America an amount equal to any amount paid or recovered by virtue of this section.
20(6)
In this section:
SECTION 21 21 REGULATIONS
The power to make regulations conferred by section 266 of the Income Tax Assessment Act 1936 shall be deemed to extend to the making of regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act.
SECTION 22
22
APPLICATION OF THIS ACT
Nothing in this Act affects assessments in respect of income, or the ascertainment of credits against tax on income, of a year of income before the year of income that commenced on 1 July 1953.
SECTION 23
GATHERING AND EXCHANGING INFORMATION
23(1)
The Commissioner or an officer authorised by the Commissioner may use the information gathering provisions for the purpose of gathering information to be exchanged in accordance with the Commissioner's obligations under an international agreement.
23(2)
(Repealed by No 145 of 2010)
23(3)
Subsection (1) has effect whether or not the information relates to Australian tax.
23(4)
In this section:
(a) to access land, premises, documents, information, goods or other property; or
(b) to require or direct a person to provide information; or
(c) to require or direct a person to appear before the Commissioner or an officer and give evidence or produce documents.
(a) an agreement given the force of law under this Act; or
(b) some other agreement that allows for the exchange of information on tax matters between Australia and:
SECTION 24
RELIEF FROM DOUBLE TAXATION WHERE PROFITS ADJUSTED
Application
24(1)
This section applies if:
(a) Australia has an agreement with one of the following (a treaty partner ):
(b) the treaty partner taxes profits, or purports to tax profits, in accordance with, or consistent with the principles of:
Object
24(2)
The object of this section is to prevent double taxation of the profits, to the extent that the Commissioner considers the taxation of the profits by the treaty partner to be in accordance with the agreement.
Adjustment of taxable income or tax loss
24(3)
The Commissioner may determine the amount of a taxpayer's taxable income or tax loss of a year of income to be an amount that is appropriate having regard to the object of this section.
Taipei Agreement
AGREEMENT BETWEEN THE AUSTRALIAN COMMERCE AND INDUSTRY OFFICE AND THE TAIPEI ECONOMIC AND CULTURAL OFFICE CONCERNING THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1
Personal scope
This Agreement shall apply to persons who are residents of one or both of the territories. ARTICLE 2 Taxes covered 1.
The existing taxes to which this Agreement shall apply are:
(a) in the territory in which the taxation law administered by the Australian Taxation Office is applied:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under that law;
(b) in the territory in which the taxation law administered by the Department of Taxation, Ministry of Finance, Taipei is applied:
the profit seeking enterprise income tax and the individual consolidated income tax, imposed under that law.
2.
This Agreement shall apply also to any identical or substantially similar taxes on income, profits or gains which are imposed after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities will notify each other as soon as practicable of any substantial changes which have been made in the taxation laws of their respective territories.
ARTICLE 3 General definitions 1.
In this Agreement, unless the context otherwise requires:
(a) the term "territory" means the territory referred to in subparagraph 1(a) or 1(b) of Article 2, as the case requires;
(b) the term "person" includes an individual, a company and any other body of persons;
(c) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(d) the terms "enterprise of a territory" and "enterprise of the other territory" mean respectively an enterprise carried on by a resident of a territory or an enterprise carried on by a resident of the other territory, as the context requires;
(e) the term "tax" means tax imposed under the law of a territory, being a tax to which this Agreement applies by virtue of Article 2, but does not include any penalty or interest imposed under that law;
(f) the term "competent authority" means, in the case of the territory in which the taxation law administered by the Australian Taxation Office is applied, the Commissioner of Taxation or an authorised representative of the Commissioner and, in the case of the territory in which the taxation law administered by the Department of Taxation, Ministry of Finance, Taipei is applied, the Director-General of the Department of Taxation or an authorised representative of the Director-General.
2.
As regards the application of this Agreement at any time in a territory, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has at that time under the law of that territory concerning the taxes to which this Agreement applies, any meaning under the applicable tax law of that territory prevailing over a meaning given to the term under other laws of that territory.
ARTICLE 4 Residence 1.
For the purposes of this Agreement, a person is a resident of a territory if the person is a resident of that territory for the purposes of its tax.
2.
A person is not a resident of the territory in which the taxation law administered by the Australian Taxation Office is applied for the purposes of this Agreement if the person is liable to tax in that territory in respect only of income from sources in that territory.
3.
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both territories, then the status of the person shall be determined in accordance with the following rules:
(a) the person shall be deemed to be a resident solely of the territory in which a permanent home is available to the person;
(b) if a permanent home is available to the person in both territories, or in neither of them, the person shall be deemed to be a resident solely of the territory in which the person has an habitual abode;
(c) if the person has an habitual abode in both territories or in neither of them, the person shall be deemed to be a resident solely of the territory with which the person's economic and personal relations are closer.
4.
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both territories, then it shall be deemed to be a resident solely of the territory in which its place of incorporation is situated.
ARTICLE 5 Permanent establishment 1.
For the purposes of this Agreement, the term "permanent establishment", in relation to an enterprise, means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
2.
The term "permanent establishment" includes especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property;
(h) a building site or construction, installation or assembly project which exists for more than 6 months; and
(i) the furnishing of services, including consultancy services in a territory by an enterprise of the other territory through employees or other personnel engaged by the enterprise for such purpose, but only where those activities (for the same or a connected project) within the first-mentioned territory continue for a period or periods aggregating more than 120 days within any twelve month period.
3.
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; or
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; or
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; or
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or of collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
4.
An enterprise shall be deemed to have a permanent establishment in a territory and to carry on business through that permanent establishment if:
(a) it carries on supervisory activities in that territory for more than 6 months in connection with a building site, or a construction, installation or assembly project, which is being undertaken in that territory; or
(b) substantial equipment is being used in that territory by, for or under contract with, the enterprise where that use continues for more than 3 months.
5.
A person acting in a territory on behalf of an enterprise of the other territory - other than an agent of an independent status to whom paragraph 6 applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned territory if:
(a) the person has, and habitually exercises in that territory, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting, the person manufactures or processes in that territory for the enterprise goods or merchandise belonging to the enterprise.
6.
An enterprise of a territory shall not be deemed to have a permanent establishment in the other territory merely because it carries on business in that other territory through a person who is a broker, general commission agent or any other agent of an independent status and is acting in the ordinary course of the person's business as such a broker or agent.
7.
The fact that a company which is a resident of a territory controls or is controlled by a company which is a resident of the other territory, or which carries on business in that other territory (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
8.
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph 5 of Article 11 and paragraph 5 of Article 12 whether an enterprise, not being an enterprise of either territory, has a permanent establishment in a territory.
ARTICLE 6 Income from Real property 1.
Income from real property may be taxed in the territory in which the real property is situated.
2.
In this Article, the term "real property":
(a) in the case of the territory in which the taxation law administered by the Australian Taxation Office is applied, has the meaning it has under the law of that territory, and includes:
(b) in the case of the territory in which the taxation law administered by the Department of Taxation, Ministry of Finance, Taipei is applied, has the meaning it has under the law of that territory, and includes:
(c) shall not include ships, boats and aircraft.
3.
Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
4.
The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of real property.
5.
The provisions of paragraphs 1 and 4 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.
ARTICLE 7 Business profits 1.
The profits of an enterprise of a territory shall be taxable only in that territory unless the enterprise carries on business in the other territory through a permanent establishment situated in that other territory. If the enterprise carries on business in that manner, the profits of the enterprise may be taxed in the other territory but only so much of them as is attributable to that permanent establishment.
2.
Subject to the provisions of paragraph 3, where an enterprise of a territory carries on business in the other territory through a permanent establishment situated in that other territory, there shall be attributed to that permanent establishment in each territory the profits which that permanent establishment might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
3.
In determining the profits of a permanent establishment, there shall be allowed as deductions expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the territory in which the permanent establishment is situated or elsewhere.
4.
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5.
Nothing in this Article shall affect the application of any law of a territory relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that territory is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
6.
Where profits include items of income or gains which are dealt with separately in other Articles of this Agreement, then the provisions of thoseArticles shall not be affected by the provisions of this Article.
7.
Nothing in this Article shall affect the operation of any law of a territory relating to tax imposed on profits from insurance with non-residents provided that if the relevant law in force in either territory at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the parties to this Agreement shall consult each other with a view to facilitating any amendment of this paragraph as may be appropriate.
8.
Where:
(a) a resident of a territory is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other territory by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other territory,
ARTICLE 8 Ships and aircraft 1.
Profits derived by an enterprise of a territory from the operation of ships or aircraft shall be taxable only in that territory.
2.
Notwithstanding the provisions of paragraph 1, such profits shall be taxed in the other territory to the extent that they are profits derived directly or indirectly from ship or aircraft operations confined solely to places in that other territory.
3.
The profits to which the provisions of paragraphs 1 and 2 apply shall include profits from:
(a) the lease of ships or aircraft on a full time, voyage or bareboat basis, and of containers and related equipment, which is merely incidental to the international operation of ships or aircraft by the lessor, provided that the leased ships or aircraft, or the containers and related equipment, are used in international operations by the lessee; and
(b) the operation of ships or aircraft derived through participation in a pool, a joint business or an international operating agency.
4.
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise which are shipped in a territory and discharged at a place in that territory shall be treated as profits from ship or aircraft operations confined solely to places in that territory.
ARTICLE 9 Associated enterprises 1.
Where
(a) an enterprise of a territory participates directly or indirectly in the management, control or capital of an enterprise of the other territory; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a territory and an enterprise of the other territory,
2.
Nothing in this Article shall affect the application of any law of a territory relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that territory is inadequate to determine the profits to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
3.
Where profits on which an enterprise of a territory has been charged to tax in that territory are also included, by virtue of the provisions of paragraph 1 or 2, in the profits of an enterprise of the other territory and charged to tax in that other territory, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other territory if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned territory shall make an appropriate adjustment to the amount of tax charged on those profits in the first-mentioned territory. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities shall if necessary consult each other.
ARTICLE 10 Dividends 1.
Dividends paid by a company which is a resident of a territory for the purposes of its tax, being dividends to which a resident of the other territory is beneficially entitled, may be taxed in that other territory.
2.
However, those dividends may also be taxed in the territory of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that territory, but the tax so charged shall not exceed:
(a) in the territory in which the taxation law administered by the Australian Taxation Office is applied:
(b) in the territory in which the taxation law administered by the Department of Taxation, Ministry of Finance, Taipei is applied:
3.
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the law, relating to tax, of the territory of which the company making the distribution is a resident for the purposes of its tax.
4.
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the dividends, being a resident of a territory, carries on business in the other territory of which the company paying the dividends is a resident, through a permanent establishment situated in that other territory, or performs in that other territory independent personal services from a fixed base situated in that other territory, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5.
Dividends paid by a company which is a resident of a territory, being dividends to which a person who is not a resident of the other territory is beneficially entitled, shall be exempt from tax in that other territory except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other territory. This paragraph shall not apply in relation to dividends paid by any company which is a resident of the territory in which the taxation law administered by the Australian Taxation Office is applied for the purposes of tax imposed by that territory and which is also a resident of the territory in which the taxation law administered by the Department of Taxation, Ministry of Finance, Taipei is applied for the purposes of tax imposed by that territory.
ARTICLE 11 Interest 1.
Interest arising in a territory, being interest to which a resident of the other territory is beneficially entitled, may be taxed in that other territory.
2.
However, that interest may also be taxed in the territory in which it arises, and according to the law of that territory, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3.
The term "interest" in this Article includes interest from government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, interest from any otherform of indebtedness and all other income assimilated to income from money lent by the law, relating to tax, of the territory in which the income arises.
4.
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the interest, being a resident of a territory, carries on business in the other territory, in which the interest arises, through a permanent establishment situated in that other territory, or performs in that other territory independent personal services from a fixed base situated in that other territory, and the indebtedness in respect of which the interest is paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5.
Interest shall be deemed to arise in a territory when the payer is an authority of that territory or a subdivision or local authority of that territory or a person who is a resident of that territory for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a territory or not, has in a territory a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment or fixed base, then the interest shall be deemed to arise in the territory in which the permanent establishment or fixed base is situated.
6.
Where, by reason of a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of that relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law, relating to tax, of each territory, but subject to the other provisions of this Agreement.
ARTICLE 12 Royalties 1.
Royalties arising in a territory, being royalties to which a resident of the other territory is beneficially entitled, may be taxed in that other territory.
2.
However, those royalties may also be taxed in the territory in which they arise, and according to the law of that territory, but the tax so charged shall not exceed 12.5 per cent of the gross amount of the royalties.
3.
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; or
(b) the use of, or the right to use, any industrial, commercial or scientific equipment; or
(c) the supply of scientific, technical, industrial or commercial knowledge or information; or
(d) the supply of any assistance that is 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) of this paragraph; or
(e) the reception of, or the right to receive, visual images or sounds, or both, transmitted to the public by:
(f) the use in connection with television broadcasting or radio broadcasting, or the right to use in connection with television broadcasting or radio broadcasting, visual images or sounds, or both, transmitted by:
(g) the use of, or the right to use:
(h)total or partial forbearance in respect of the use or supply of any property or right referred to in this paragraph.
4.
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the royalties, being a resident of a territory, carries on business in the other territory, in which the royalties arise, through a permanent establishment situated in that other territory, or performs in that other territory independent personal services from a fixed base situated in that other territory, and the property or right in respect of which the royalties are paid or credited is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5.
Royalties shall be deemed to arise in a territory when the payer is an authority of that territory or a subdivision or local authority of that territory or a person who is a resident of that territory for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of a territory or not, has in a territory a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the territory in which the permanent establishment or fixed base is situated.
6.
Where, by reason of a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law, relating to tax, of each territory, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of property 1.
Income, profits or gains derived by a resident of a territory from the alienation of real property situated in the other territory may be taxed in that other territory.
2.
Income, profits or gains from the alienation of property, other than real property, that forms part of the business property of a permanent establishment which an enterprise of a territory has in the other territory or pertains to a fixed base available in that other territory to a resident of the first-mentioned territory for the purpose of performing independent personal services, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise) or of that fixed base, may be taxed in that other territory.
3.
Income, profits or gains from the alienation of ships or aircraft operated in international traffic, or of property (other than real property) pertaining to the operation of those ships or aircraft, shall be taxable only in the territory of which the enterprise operating those ships or aircraft is a resident.
4.
Income, profits or gains derived by a resident of a territory from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of real property situated in the other territory, may be taxed in that other territory.
5.
Nothing in this Agreement shall affect the application of a law of a territory relating to the taxation of gains of a capital nature derived from the alienation of any property other than that to which any of the preceding paragraphs of this Article apply.
6.
In this Article, the term "real property" has the same meaning as it has in Article 6.
7.
The situation of real property shall be determined for the purposes of this Article in accordance with paragraph 3 of Article 6.
ARTICLE 14 Independent personal services 1.
Income derived by an individual who is a resident of a territory in respect of professional services or other activities of an independent character shall be taxable only in that territory unless a fixed base is regularly available to the individual in the other territory for the purpose of performing the individual's activities. If such a fixed base is available to the individual, the income may be taxed in the other territory but only so much of it as is attributable to activities exercised from that fixed base.
2.
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent personal services 1.
Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by an individual who is a resident of a territory in respect of an employment shall be taxable only in that territory unless the employment is exercised in the other territory. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other territory.
2.
Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of a territory in respect of an employment exercised in the other territory shall be taxable only in the first-mentioned territory if:
(a) the recipient is present in the other territory for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the year of income concerned; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other territory; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other territory; and
(d) the remuneration is, or upon the application of this Article will be, subject to tax in the first-mentioned territory.
3.
Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated by an enterprise of a territory in international traffic shall be taxable only in that territory.
ARTICLE 16 Directors' fees
Directors' fees and similar payments derived by a resident of a territory in the person's capacity as a member of the board of directors of a company which is a resident of the other territory may be taxed in that other territory. ARTICLE 17 Entertainers and sportspersons 1.
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians) and sportspersons from their personal activities as such may be taxed in the territory in which these activities are exercised.
2.
Where income in respect of the personal activities of an entertainer or a sportsperson as such accrues not to that entertainer or sportsperson but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the territory in which the activities of the entertainer or sportsperson are exercised.
ARTICLE 18 Pensions and annuities 1.
All pensions and annuities paid to a resident of a territory shall be taxable only in that territory.
2.
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
ARTICLE 19 Public service 1.
Salaries, wages and other similar remuneration, other than a pension or annuity, paid by an authority administering a territory or a subdivision of that territory or by a local authority of that territory to any individual in respect of services rendered in the discharge of public or administrative functions on behalf of such an authority shall be taxable only in that territory. However, such salaries, wages and other similar remuneration shall be taxable only in the other territory if the services are rendered in that other territory and the recipient is a resident of that other territory who:
(a)is a citizen or national of that territory; or
(b) did not become a resident of that territory solely for the purpose of performing the services.
2.
The provisions of paragraph 1 shall not apply to salaries, wages and other similar remuneration in respect of services rendered in connection with any trade or business carried on by any authority referred to in paragraph 1. In that case, the provisions of Article 15 or Article 16, as the case may be, shall apply.
ARTICLE 20 Students
Where a student, who is a resident of a territory or who was a resident of that territory immediately before visiting the other territory and who is temporarily present in that other territory solely for the purpose of the student's education, receives payments from sources outside that other territory for the purpose of the student's maintenance or education, those payments shall be exempt from tax in that other territory. ARTICLE 21 Other income 1.
Items of income of a resident of a territory, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that territory.
2.
However, any such income derived by a resident of a territory from sources in the other territory may also be taxed in that other territory.
3.
The provisions of paragraph 1 shall not apply to income, other than income from real property as defined in paragraph 2 of Article 6, derived by a resident of a territory where that income is effectively connected with a permanent establishment or fixed base situated in the other territory. In that case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
ARTICLE 22 Methods of elimination of double taxation
Subject to the provisions of the law of a territory from time to time in force relating to the allowance of a credit against tax payable in that territory of tax paid outside that territory (which shall not affect the general principle of this Article), tax paid under the law of the other territory and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of the first-mentioned territory from sources in the other territory shall be allowed as a credit against tax payable in the first-mentioned territory in respect of that income. The amount of credit, however, shall not exceed the amount of the tax in the first-mentioned territory on that income computed in accordance with its taxation laws and regulations. ARTICLE 23 Mutual agreement procedure 1.
Where a person considers that the actions of the competent authority of one or both of the territories result or will result for the person in taxation not in accordance with this Agreement, the person may, irrespective of the remedies provided by the domestic law of those territories concerning taxes to which this Agreement applies, present a case to the competent authority of the territory of which the person is a resident. The case must be presented within 3 years from the first notification of the action resulting in taxation not in accordance with this Agreement.
2.
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case with the competent authority of the other territory, with a view to the avoidance of taxation which is not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the domestic law of the territories.
3.
The competent authorities shall jointly endeavour to resolve any difficulties or doubts arising as to the interpretation or application of this Agreement. They may also consult together for the elimination of double taxation in cases not provided for in this Agreement.
4.
The competent authorities may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 24 Exchange of information 1.
The competent authorities shall exchange such information as is necessary for carrying out this Agreement or of the domestic law of each of the territories concerning taxes to which this Agreement applies insofar as the taxation under that law is not contrary to this Agreement. Any information received by the competent authority of a territory shall be treated as secret in the same manner as information obtained under the domestic law of that territory and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
2.
In no case shall the provisions of paragraph 1 be construed so as to impose on the competent authority of a territory the obligation:
(a) to carry out administrative measures at variance with the law or the administrative practice of that or of the other territory; or
(b) to supply information which is not obtainable under the law or in the normal course of the administration of that or of the other territory; or
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 25 Entry into effect
This Agreement shall enter into effect on the date on which the Australian Commerce and Industry Office and the Taipei Economic and Cultural Office notify each other in writing that the last of such things has been done as is necessary to give this Agreement effect in the domestic law of the respective territories. This Agreement shall have effect:
(a) in both territories, in respect of:
(b) in respect of other tax of the territory in which the taxation law administered by the Australian Taxation Office is applied, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the Agreement enters into effect;
(c) in respect of other tax of the territory in which the taxation law administered by the Department of Taxation, Ministry of Finance, Taipei is applied, in relation to income, profits or gains of any year of income beginning on or after 1 January in the calendar year next following that in which the Agreement enters into effect. ARTICLE 26 Termination
This Agreement shall continue in effect indefinitely, but an authority administering either territory may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into effect, give to the other written notice of termination and, in that event, the Agreement shall cease to be effective:
(a) in both territories, in respect of withholding tax on income, profits or gains derived by a non-resident, in relation to income, profits or gains derived on or after the first day of the second month next following that in which the notice of termination is given;
(b) in respect of other tax of the territory in which the taxation law administered by the Australian Taxation Office is applied, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(c) in respect of other tax of the territory in which the taxation law administered by the Department of Taxation, Ministry of Finance, Taipei is applied, in relation to income, profits or gains of 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.
If a subsequent agreement that is given effect under the International Tax Agreements Act 1953 in the territory in which the taxation law administered by the Australian Taxation Office is applied, includes a Non-Discrimination Article, the parties to this Annex will enter into negotiations with a view to providing the same treatment as is provided for in the Non-Discrimination Article; SECTION 2. 2.
Income, profits or gains derived by an organisation, or its successors, agreed by the competent authorities in an exchange of letters for the purposes of this paragraph as carrying on activities promoting trade, investment and cultural exchanges between the territories, shall be taxable solely in the territory on whose behalf the activities are carried on. The competent authorities will also specify in their exchange of letters the date from which the organisation shall be so taxable.
Tax Treaties
(Repealed) FORMER SCHEDULE 1 - 2003 United Kingdom Convention and Notes
(Repealed) SCHEDULE 1A - Protocol to UK Agreement (Repealed)
(Repealed) SCHEDULE 2 - USA Convention
(Repealed) SCHEDULE 2A - United States Protocol
(Repealed) SCHEDULE 3 - Canadian Convention
(Repealed) SCHEDULE 3A - Canadian Protocol
(Repealed) SCHEDULE 4 - New Zealand Convention
SCHEDULE 4A - The New Zealand protocol (Repealed)
(Repealed) SCHEDULE 5 - Singapore Agreement
(Repealed) SCHEDULE 5A - Protocol to Singapore Agreement
(Repealed) SCHEDULE 5B - The Second Singapore Protocol
(Repealed) SCHEDULE 6 - CONVENTION BETWEEN AUSTRALIA AND JAPAN FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
SCHEDULE 7 - French Airline Profits Agreement (Terminated)
(Repealed) SCHEDULE 8 - Italian Airline Profits Agreement
(Repealed) SCHEDULE 9 - German Agreement
(Repealed) SCHEDULE 10 - Netherlands Agreement
(Repealed) SCHEDULE 10A - Second Protocol to Netherlands Agreement
(Repealed) SCHEDULE 11 - 2006 French Convention
(Repealed) SCHEDULE 11A - Protocol to French Agreement
(Repealed) SCHEDULE 12 - Greek Agreement
(Repealed) SCHEDULE 13 - Belgian Agreement
(Repealed) SCHEDULE 13A - Protocol to Belgian Agreement
(Repealed) SCHEDULE 13B - The Second Belgian Protocol
(Repealed) SCHEDULE 14 - Philippine Agreement
(Repealed) SCHEDULE 15 - Swiss Agreement
(Repealed) SCHEDULE 16 - Malaysian Agreement
(Repealed) SCHEDULE 16A - Malaysian Protocol
(Repealed) SCHEDULE 16B - Second Malaysian Protocol
(Repealed) SCHEDULE 17 - Swedish Agreement
(Repealed) SCHEDULE 18 - Danish Agreement
(Repealed) SCHEDULE 19 - Indian Airline Profits Agreement (Repealed)
(Repealed) SCHEDULE 20 - Irish Agreement
(Repealed) SCHEDULE 21 - Italian Convention
(Repealed) SCHEDULE 22 - Korean Convention
(Repealed) SCHEDULE 23 - 2006 Norwegian Convention
(Repealed) SCHEDULE 24 - Maltese Agreement
(Repealed) SCHEDULE 25 - 2006 Finnish Agreement
SCHEDULE 25A - Second Finnish Protocol (Repealed)
(Repealed) SCHEDULE 26 - Chinese Airline Profits Agreement
(Repealed) SCHEDULE 27 - Austrian Agreement
(Repealed) SCHEDULE 28 - Chinese Agreement
(Repealed) SCHEDULE 29 - Papua New Guinea Agreement
(Repealed) SCHEDULE 30 - Thai Agreement
(Repealed) SCHEDULE 31 - Sri Lankan Agreement
(Repealed) SCHEDULE 32 - Fijian Agreement
(Repealed) SCHEDULE 33 - Hungarian Agreement
(Repealed) SCHEDULE 34 - Kiribati Agreement
(Repealed) SCHEDULE 35 - Indian Agreement
(Repealed) SCHEDULE 36 - Polish Agreement
(Repealed) SCHEDULE 37 - Indonesian Agreement
(Repealed) SCHEDULE 38 - Vietnamese Agreement
(Repealed) SCHEDULE 38A - Vietnamese Agreement - Exchange of Notes
(Repealed) SCHEDULE 39 - Spanish Agreement
(Repealed) SCHEDULE 40 - Czech Agreement
(Repealed) SCHEDULE 41 - Taipei Agreement
(Repealed) SCHEDULE 42 - South African Agreement
(Repealed) Schedule 42A - South African Protocol
(Repealed) SCHEDULE 43 - Slovak Agreement
(Repealed) SCHEDULE 44 - Argentine Agreement
(Repealed) SCHEDULE 45 - Romanian Agreement
(Repealed) SCHEDULE 46 - Russian Agreement
(Repealed) SCHEDULE 47 - Mexican Agreement and Protocol
(Repealed) Schedule 48 - The British Virgin Islands Agreement
(Repealed) Schedule 49 - The Isle of Man Agreement
(Repealed) Schedule 50 - The Jersey Agreement
This Act may be cited as the International Tax Agreements Act 1953.
View history noteHistory
S 1 amended by No 22 of 1995.
This Act shall come into operation on the day on which it receives the Royal Assent. SECTION 3 INTERPRETATION 3(1)
In this Act:
agreement
means a treaty or other agreement described in section 3AAA (about current agreements) or 3AAB (about agreements for earlier periods).
Note:
Most of the conventions, protocols and other agreements described in these sections are set out in the Australian Treaty Series. In 2023, the text of an agreement in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
History
Definition of "agreement" amended by No 40 of 2023, s 3 and Sch 1 item 3, by substituting "2023" for "2011" in the note, effective 29 June 2023.
Assessment Act
means the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997.
(a) income tax imposed as such by an Act; or
(b) fringe benefits tax imposed by the Fringe Benefits Tax Act 1986.
Note:
This includes Medicare levy (see subsection (10)).
foreign tax
means tax, other than Australian tax, which is the subject of an agreement.
prescribed trust estate
, in relation to a year of income, means a trust estate that is a public trading trust, within the meaning of Division 6C of Part III of the Income Tax Assessment Act 1936, in relation to the year of income.
History
Definition of "prescribed trust estate" substituted by No 53 of 2016, s 3 and Sch 5 item 71, applicable to assessments for income years starting on or after 1 July 2016. No 53 of 2016 (as amended by No 15 of 2019), s 3 and Sch 5 Pt 4 contains the following transitional provision:
Part 4 - Transitional
75 Transitional rule for 20% tracing requirement and repeal of Division 6B - imputation
(1)
This item applies if at a time (the cessation time ), on or after the commencement of this Schedule, either:
(a) section 102K of the Income Tax Assessment Act 1936 ceases to apply to the trustee of a trust because of the repeal of that section by Part 2 of this Schedule; or
(b) section 102S of that Act ceases to apply to the trustee of a trust because of the amendment made by Part 1 of this Schedule.
(2)
Subitems (3) and (3A) apply applies if:
(a) an event happens in respect of the trust that is described in:
(i) the table in subsection 205-15(1) of the Income Tax Assessment Act 1997; or
(ii) the table in subsection 205-30(1) of that Act; and
(b) the event happens on or after the cessation time but before 1 July 2019; and
(c) the event is:
(i) the trust paying income tax for an income year starting before 1 July 2016; or
(ii) the trust paying a PAYG instalment in respect of income tax for an income year starting before 1 July 2016; or
(iii) the trust receiving a refund of income tax for an income year starting before 1 July 2016; or
(iv) the trust franking a distribution; or
(v) the trust ceasing to be a franking entity.HistoryS 75(2) amended by No 15 of 2019, s 3 and Sch 1 items 34-36, by substituting "Subitems (3) and (3A) apply" for "Subitem (3) applies", "1 July 2019" for "1 July 2018" in para (b) and inserting para (c)(v), applicable in relation to the 2018-19 income year and later income years.
(2A)
However, subparagraph (2)(c)(v) does not apply unless the trust's franking account is in surplus immediately before the trust ceases to be a franking entity.HistoryS 75(2A) inserted by No 15 of 2019, s 3 and Sch 1 item 37, applicable in relation to the 2018-19 income year and later income years.
(3)
For the purposes of determining whether a franking credit or franking debit arises in the trust's franking account as a result of the event:
(a)treat the trust as a corporate tax entity at the time the event happens; and
(b) treat the trust as satisfying the residency requirement in section 205-25 of the Income Tax Assessment Act 1997 for the income year in which the event happens.
(3A)
If the event is an event described in item 4 of the table in subsection 205-30(1) of the Income Tax Assessment Act 1997, treat the event as happening on 1 July 2019.HistoryS 75(3A) inserted by No 15 of 2019, s 3 and Sch 1 item 38, applicable in relation to the 2018-19 income year and later income years.
(4)
Subitems (5) and (6) apply if:
(a) the trust makes a distribution on or after the cessation time but before 1 July 2019; and
(b) the trust's franking account is in surplus just before the trust makes the distribution; and
(c) the distribution is not made out of income derived in relation to the 2016-17 income year or a later income year.HistoryS 75(4) amended by No 15 of 2019, s 3 and Sch 1 items 39-41, by substituting "Subitems (5) and (6) apply" for "Subitem (5) applies", "1 July 2019" for "1 July 2018" in para (a) and inserting para (c), applicable in relation to the 2018-19 income year and later income years.
(5)
For the purposes of determining whether the trust franks the distribution as a result of the event:
(a) treat the trust as a corporate tax entity at the time it makes the distribution; and
(b) treat the trust as satisfying the residency requirement in section 202-20 of the Income Tax Assessment Act 1997 at the time it makes the distribution.Note:
As a result, the trust will satisfy the requirement in paragraph 202-5(a) of that Act in respect of the distribution. If the other requirements in section 202-5 of that Act are satisfied in respect of the distribution, this means that the trust franks the distribution.
(6)
Treat a beneficiary of the trust who receives the distribution as receiving, for the purposes of the income tax law, a dividend from a corporate tax entity.HistoryS 75(6) inserted by No 15 of 2019, s 3 and Sch 1 item 42, applicable in relation to the 2018-19 income year and later income years.
The definition formerly read:
prescribed trust estate
, in relation to a year of income, means a trust estate that:
(a) is a corporate unit trust, within the meaning of Division 6B of Part III of the Income Tax Assessment Act 1936, in relation to the year of income; or
(b) is a public trading trust, within the meaning of Division 6C of Part III of that Act, in relation to the year of income.
History
History
Definition of "the South African agreement" amended by No 111 of 2008 and inserted by No 149 of 1999.
S 3(1) substituted by No 45 of 2011, s 3 and Sch 1 item 2, effective 27 June 2011. S 3(1) formerly read:
3(1)
In this Act, unless the contrary intention appears:agreement
means:
(a) a convention or agreement a copy of which is set out in a Schedule to this Act; or
(b) the 1946 United Kingdom agreement; or
(ba) the 1967 United Kingdom agreement; or
(bb) the 1967 United Kingdom agreement as amended by the 1980 Protocol to the 1967 United Kingdom agreement; or
(bc) the 1969 French airline profits agreement; or
(bd) the 1976 French agreement; or
(be) the 1976 French agreement as amended by the 1989 French protocol; or
(c) the 1960 New Zealand agreement; or
(ca) the 1972 New Zealand agreement; or
(caa) the 1995 New Zealand agreement; or
(cab) the 1995 New Zealand agreement as amended by the 2005 New Zealand protocol; or
(cb) the 1982 Norwegian convention; or
(cc) the 1984 Finnish agreement; or
(cd) the 1984 Finnish agreement as amended by the 1997 Finnish protocol; or
(d) the previous Canadian agreement; or
(e) the previous United States convention; or
(f) the 1969 Japanese agreement.HistoryDefinition of "agreement" amended by No 13 of 2010, s 3 and Sch 1 item 3, by inserting paras (caa) and (cab), effective 11 March 2010.
Definition of "agreement" amended by No 102 of 2008, s 3 and Sch 1 item 1 by inserting "or" at the end of paragraphs (a) to (cd) and item 2, by inserting para (f), effective 3 October 2008.
Definition of "agreement" amended by No 146 of 2007, s 3 and Sch 1 item 1, by inserting paras (cc) and (cd), effective 24 September 2007.
Definition of "agreement" amended by No 136 of 2007, s 3 and Sch 1 item 1, by inserting paras (bc), (bd) and (be), and Sch 2 item 1, by inserting para (cb), effective 3 September 2007.
Definition of "agreement" amended No 123 of 2003, by No 22 of 1995.
Australian tax
means:
(a) income tax imposed as such by an Act; or
(b) fringe benefits tax imposed by the Fringe Benefits Tax Act 1986.HistoryDefinition of "Australian tax" substituted by No 22 of 1995.
calendar year
means a year commencing on 1 January.foreign tax
means tax, other than Australian tax, which is the subject of an agreement.prescribed trust estate
, in relation to a year of income, means a trust estate that:
(a) is a corporate unit trust, within the meaning of Division 6B of Part III of the Assessment Act, in relation to the year of income; or
(b) is a public trading trust, within the meaning of Division 6C of Part III of the Assessment Act, in relation to the year of income.HistoryDefinition of "prescribed trust estate" inserted by No 173 of 1985.
the 1946 United Kingdom agreement
means the Agreement between the Government of Australia and the Government of the United Kingdom for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income that was signed at London on 29 October 1946.HistoryDefinition of "the 1946 United Kingdom agreement" inserted by No 123 of 2003.
the 1960 New Zealand agreement
means the Agreement between the Government of Australia and the Government of New Zealand for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income that was signed at Canberra on 12 May 1960.HistoryDefinition of "the 1960 New Zealand agreement" relocated to appropriate alphabetical position by No 8 of 2010, s 3 and Sch 1 item 35, effective 1 March 2010.
Definition of "the 1960 New Zealand agreement" inserted by No 22 of 1995.
the 1967 United Kingdom agreement
means the Agreement between the Government of the Commonwealth of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital gains that was signed at Canberra on 7 December 1967.HistoryDefinition of "the 1967 United Kingdom agreement" inserted by No 123 of 2003.
the 1969 French airline profits agreement
means the Agreement between the Government of Australia and the Government of the French Republic for the avoidance of double taxation of income derived from international air transport that was signed at Canberra on 27 March 1969.HistoryDefinition of "the 1969 French airline profits agreement" inserted by No 136 of 2007, s 3 and Sch 1 item 2, effective 3 September 2007.
the 1969 Japanese agreement
means the Agreement between the Government of the Commonwealth of Australia and the Government of Japan for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and the protocol to that agreement, being the agreement and protocol that was signed at Canberra on 20 March 1969.HistoryDefinition of "the 1969 Japanese agreement" inserted by No 102 of 2008, s 3 and Sch 1 item 3, effective 3 October 2008.
the 1972 New Zealand agreement
means the Agreement between the Government of Australia and the Government of New Zealand for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income that was signed at Melbourne on 8 November 1972.HistoryDefinition of "the 1972 New Zealand agreement" relocated to appropriate alphabetical position by No 8 of 2010, s 3 and Sch 1 item 35, effective 1 March 2010.
Definition of "the 1972 New Zealand agreement" inserted by No 22 of 1995.
the 1976 French agreement
means the Agreement between the Government of Australia and the Government of the French Republic for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income that was signed at Canberra on 13 April 1976.HistoryDefinition of "the 1976 French agreement" inserted by No 136 of 2007, s 3 and Sch 1 item 3, effective 3 September 2007.
the 1980 Protocol to the 1967 United Kingdom agreement
means the Protocol, signed at Canberra on 29 January 1980, between the Government of the Commonwealth of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland amending the 1967 United Kingdom agreement.HistoryDefinition of "the 1980 Protocol to the 1967 United Kingdom agreement" inserted by No 123 of 2003.
the 1982 Norwegian convention
means the Convention between Australia and the Kingdom of Norway for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital and the protocol to that convention, being the convention and protocol that were signed at Canberra on 6 May 1982.HistoryDefinition of "the 1982 Norwegian convention" inserted by No 136 of 2007, s 3 and Sch 2 item 2, effective 3 September 2007.
the 1984 Finnish agreement
means the Agreement between Australia and Finland for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and the protocol to that agreement, being the agreement and protocol that were signed at Canberra on 12 September 1984.HistoryDefinition of "the 1984 Finnish agreement" inserted by No 146 of 2007, s 3 and Sch 1 item 2, effective 24 September 2007.
the 1989 French protocol
means the Protocol, signed at Paris on 19 June 1989, between the Government of Australia and the Government of the French Republic amending the 1976 French agreement.HistoryDefinition of "the 1989 French protocol" inserted by No 136 of 2007, s 3 and Sch 1 item 4, effective 3 September 2007.
the 1995 New Zealand agreement
means the Agreement between the Government of Australia and the Government of New Zealand for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement signed at Melbourne on 27 January 1995.HistoryDefinition of "the 1995 New Zealand agreement" inserted by No 13 of 2010, s 3 and Sch 1 item 4, effective 11 March 2010.
the 1997 Finnish protocol
means the Protocol, signed at Canberra on 5 November 1997, between Australia and Finland amending the 1984 Finnish agreement.HistoryDefinition of "the 1997 Finnish protocol" inserted by No 146 of 2007, s 3 and Sch 1 item 3, effective 24 September 2007.
the 2003 United Kingdom convention
means the Convention between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital gains, as affected by the 2003 United Kingdom notes. A copy of the convention and of the notes is set out in Schedule 1.HistoryDefinition of "the 2003 United Kingdom convention" inserted by No 123 of 2003.
the 2003 United Kingdom notes
means the exchange of notes between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland in connection with the 2003 United Kingdom convention that was carried out at Canberra on 21 August 2003. A copy of the notes is set out in Schedule 1.HistoryDefinition of "the 2003 United Kingdom notes" inserted by No 123 of 2003.
the 2005 New Zealand protocol
means the Protocol, signed at Melbourne on 15 November 2005, between the Government of Australia and the Government of New Zealand amending the 1995 New Zealand agreement.HistoryDefinition of "the 2005 New Zealand protocol" inserted by No 13 of 2010, s 3 and Sch 1 item 5, effective 11 March 2010.
the 2006 Finnish agreement
means the Agreement between the Government of Australia and the Government of Finland for the avoidance of double taxation with respect to taxes on income and the prevention of fiscal evasion and the protocol to that agreement, being the agreement and protocol a copy of each of which in the English language is set out in Schedule 25.HistoryDefinition of "the 2006 Finnish agreement" inserted by No 146 of 2007, s 3 and Sch 1 item 4, effective 24 September 2007.
the 2006 French convention
means the Convention between the Government of Australia and the Government of the French Republic for the avoidance of double taxation with respect to taxes on income and the prevention of fiscal evasion and the protocol to that convention, being the convention and protocol a copy of each of which in the English language is set out in Schedule 11.HistoryDefinition of "the 2006 French convention" inserted by No 136 of 2007, s 3 and Sch 1 item 5, effective 3 September 2007.
the 2006 Norwegian convention
means the Convention between Australia and the Kingdom of Norway for the avoidance of double taxation with respect to taxes on income and the prevention of fiscal evasion, being the convention a copy of which is set out in Schedule 23.HistoryDefinition of "the 2006 Norwegian convention" inserted by No 136 of 2007, s 3 and Sch 2 item 3, effective 3 September 2007.
the 2008Japanese convention
means the Convention between Australia and Japan for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and the protocol to that convention, being the convention and protocol a copy of each of which in the English language is set out in Schedule 6.HistoryDefinition of "the 2008 Japanese convention" inserted by No 102 of 2008, s 3 and Sch 1 item 4, effective 3 October 2008.
the 2009 New Zealand convention
means the Convention between Australia and New Zealand for the avoidance of double taxation with respect to taxes on income and fringe benefits and the prevention of fiscal evasion, being the convention a copy of which is set out in Schedule 4.HistoryDefinition of "the 2009 New Zealand convention" inserted by No 13 of 2010, s 3 and Sch 1 item 6, effective 11 March 2010.
the Argentine agreement
means the Agreement between the Government of Australia and the Government of the Argentine Republic for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and the protocol to that agreement, being the agreement and protocol a copy of each of which in the English language is set out in Schedule 44.HistoryDefinition of "the Argentine agreement" inserted by No 149 of 1999.
the Assessment Act
means the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997.HistoryDefinition of "the Assessment Act" amended by No 39 of 1997 and substituted by No 11 of 1973.
the Austrian agreement
means the Agreement between Australia and the Republic of Austria for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which in the English language is set out in Schedule 27.HistoryDefinition of "the Austrian agreement" inserted by No 112 of 1986.
the Belgian agreement
means the Agreement between Australia and the Kingdom of Belgium for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income (being the agreement a copy of which in the English language is set out in Schedule 13), as amended by the first and second Belgian protocols.HistoryDefinition of "the Belgian agreement" amended by No 13 of 2010, s 3 and Sch 1 item 7, by substituting "first and second Belgian protocols" for "Belgian protocol", effective 11 March 2010.
Definition of "the Belgian agreement" substituted by No 125 of 1984 and inserted by No 134 of 1977.
the Belgian protocol
(Repealed by No 13 of 2010)HistoryDefinition of "the Belgian protocol" repealed by No 13 of 2010, s 3 and Sch 1 item 8, effective 11 March 2010. The definition formerly read:
the Belgian protocol
means the Protocol amending the Agreement between Australia and the Kingdom of Belgium for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the protocol a copy of which in the English language is set out in Schedule 13A;Definition of "the Belgian protocol" inserted by No 125 of 1984.
the British Virgin Islands agreement
means the Agreement between the Government of Australia and the Government of the British Virgin Islands for the allocation of taxing rights with respect to certain income of individuals, being the agreement a copy of which is set out in Schedule 48.HistoryDefinition of "the British Virgin Islands agreement" inserted by No 105 of 2009, s 3 and Sch 1 item 1, effective 8 October 2009.
the Canadian convention
means the Convention between the Government of Australia and the Government of Canada for theavoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the convention a copy of which in the English language is set out in Schedule 3, as amended by the Canadian protocol.HistoryDefinition of "the Canadian convention" amended by No 129 of 2002 and inserted by No 127 of 1980.
the Canadian protocol
means the Protocol amending the Convention between the Government of Australia and the Government of Canada for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the protocol a copy of which in the English language is set out in Schedule 3A.HistoryDefinition of "the Canadian protocol" inserted by No 129 of 2002.
the Chinese agreement
means the Agreement between the Government of Australia and the Government of the People's Republic of China for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which in the English language is set out in Schedule 28.HistoryDefinition of "the Chinese agreement" inserted by No 121 of 1990.
the Chinese airline profits agreement
means the Agreement between the Government of Australia and the Government of the People's Republic of China for the avoidance of double taxation of income and revenues derived by air transport enterprises from international air transport, being the agreement a copy of which in the English language is set out in Schedule 26.HistoryDefinition of "the Chinese airline profits agreement" inserted by No 46 of 1986.
the Czech agreement
means the Agreement between Australia and the Czech Republic for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which in the English language is set out in Schedule 40.HistoryDefinition of "the Czech agreement" inserted by No 127 of 1995.
the Danish agreement
means the Agreement between the Government of Australia and the Government of the Kingdom of Denmark for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which is set out in Schedule 18.HistoryDefinition of "the Danish agreement" inserted by No 143 of 1981.
the Fijian agreement
means the Agreement between Australia and Fiji for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which is set out in Schedule 32.HistoryDefinition of "the Fijian agreement" inserted by No 121 of 1990.
the Finnish agreement
(Repealed by No 146 of 2007)HistoryDefinition of "the Finnish agreement" repealed by No 146 of 2007, s 3 and Sch 1 item 5, effective 24 September 2007. The definition formerly read:
the Finnish agreement
means the Agreement between Australia and Finland for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and the protocol to that agreement, being the agreement and protocol a copy of each of which in the English language is set out in Schedule 25, as amended by the second Finnish protocol;Definition of "the Finnish agreement" amended by No 100 of 2000 and inserted by No 168 of 1985.
the first Belgian protocol
means the Protocol, signed 20 March 1984, amending the Agreement between Australia and the Kingdom of Belgium for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the protocol a copy of which in the English version is set out in Schedule 13A.HistoryDefinition of "the first Belgian protocol" inserted by No 13 of 2010, s 3 and Sch 1 item 9, effective 11 March 2010.
the first Malaysian protocol
means the Protocol, signed 2 August 1999, amending the Agreement between Australia and Malaysia for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the protocol a copy of which in the English language is set out in Schedule 16A.HistoryDefinition of "the first Malaysian protocol" inserted by No 129 of 2002.
the first Singapore protocol
means the Protocol amending the Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Singapore for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the protocol a copy of which is set out in Schedule 5A.HistoryDefinition of "the first Singapore protocol" inserted by No 115 of 2010, s 3 and Sch 1 item 1, effective 9 November 2010.
the French agreement
(Repealed by No 136 of 2007)HistoryDefinition of "the French agreement" repealed by No 136 of 2007, s 3 and Sch 1 item 6, effective 3 September 2007. The definition formerly read:
the French agreement
means the Agreement between the Government of Australia and the Government of the French Republic for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which in the English language is set out in Schedule 11, as amended by the French protocol;Definition of "the French agreement" amended by No 165 of 1989 and inserted by No 52 of 1976.
the French airline profits agreement
(Repealed by No 136 of 2007)HistoryDefinition of "the French airline profits agreement" repealed by No 136 of 2007, s 3 and Sch 1 item 7, effective 3 September 2007. The definition formerly read:
the French airline profits agreement
means the Agreement between the Government of Australia and the Government of the French Republic for the avoidance of double taxation of income derived from international air transport, being the agreement a copy of which in the English language is set out in Schedule 7;the French protocol
(Repealed by No 136 of 2007)HistoryDefinition of "the French protocol" repealed by No 136 of 2007, s 3 and Sch 1 item 8, effective 3 September 2007. The definition formerly read:
the French protocol
means the Protocol amending the Agreement between the Government of Australia and the Government of the French Republic for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the protocol a copy of which in the English language is set out in Schedule 11A;Definition of "the French protocol" inserted by No 165 of 1989.
the German agreement
means the Agreement between the Government of Australia and the Government of the Federal Republic of Germany for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital and to certain other taxes and the protocol to that agreement, being the agreement and protocol a copy of each of which in the English language is set out in Schedule 9.HistoryDefinition of "the German agreement" inserted by No 129 of 1974.
the Greek agreement
(Repealed by No 129 of 2002)HistoryDefinition of "the Greek agreement" inserted by No 134 of 1977.
the Greek airline profits agreement
means the Agreement between the Government of Australia and the Government of the Hellenic Republic for the avoidance of double taxation of income derived from international air transport, being the agreement a copy of which is set out in the English language in Schedule 12.HistoryDefinition of "the Greek airline profits agreement" inserted by No 129 of 2002.
the Hungarian agreement
means the Agreement between Australia and the Republic of Hungary for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which in the English language is set out in Schedule 33.HistoryDefinition of "the Hungarian agreement" inserted by No 96 of 1991.
the Indian agreement
means the Agreement between the Government of Australia and the Government of the Republic of India for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which in the English language is set out in Schedule 35.HistoryDefinition of "the Indian agreement" inserted by No 214 of 1991.
the Indian airline profits agreement
(Omitted by No 139 of 1992)HistoryDefinition of "the Indian airline profits agreement" inserted by No 57 of 1983.
the Indonesian agreement
means the Agreement between the Government of Australia and the Government of the Republic of Indonesia for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which is set out in Schedule 37.HistoryDefinition of "the Indonesian agreement" inserted by No 139 of 1992.
the Irish agreement
means the Agreement between the Government of Australia and the Government of Ireland for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital gains, being the agreement a copy of which is set out in Schedule 20.HistoryDefinition of "the Irish agreement" inserted by No 57 of 1983.
the Isle of Man agreement
means the Agreement between the Government of Australia and the Government of the Isle of Man 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, being the agreement a copy of which is set out in Schedule 49.HistoryDefinition of "the Isle of Man agreement" inserted by No 105 of 2009, s 3 and Sch 1 item 2, effective 8 October 2009.
the Italian agreement
(Omitted by No 57 of 1983)the Italian airline profits agreement
means the Agreement between the Government of Australia and the Government of Italy for the avoidance of double taxation of income derived from international air transport, being the agreement a copy of which in the English language is set out in Schedule 8.HistoryDefinition of "the Italian airline profits agreement" inserted by No 57 of 1983.
the Italian convention
means the Convention between Australia and the Republic of Italy for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and the protocol to that convention, being the convention and protocol a copy of each of which in the English language is set out in Schedule 21.HistoryDefinition of "the Italian convention" inserted by No 57 of 1983.
the Japanese agreement
(Repealed by No 102 of 2008)HistoryDefinition of "the Japanese agreement" repealed by No 102 of 2008, s 3 and Sch 1 item 5, effective 3 October 2008. The definition formerly read:
the Japanese agreement
means the Agreement between the Government of Australia and the Government of Japan for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and the protocol to that agreement, being the agreement and protocol a copy of each of which in the English language is set out in Schedule 6;the Jersey agreement
means the Agreement between the Government of Australia and the Government of Jersey 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, being the agreement a copy of which is set out in Schedule 50.HistoryDefinition of "the Jersey agreement" inserted by No 13 of 2010, s 3 and Sch 1 item 10, effective 11 March 2010.
the Kiribati agreement
means the Agreement between Australia and the Republic of Kiribati for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which is set out in Schedule 34.HistoryDefinition of "the Kiribati agreement" inserted by No 96 of 1991.
the Korean convention
means the Convention between the Government of Australia and the Government of the Republic of Korea for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and the protocol to that convention, being the convention and protocol a copy of each of which in the English language is set out in Schedule 22.HistoryDefinition of "the Korean convention" inserted by No 57 of 1983.
the Malaysian agreement
means the Agreement between Australia and Malaysia for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which is set out in the English language in Schedule 16, as amended by the first and second Malaysian protocols.HistoryDefinition of "the Malaysian agreement" substituted by No 129 of 2002 and inserted by No 28 of 1981.
the Malaysian protocol
(Repealed by No 129 of 2002)HistoryDefinition of "the Malaysian protocol" inserted by No 149 of 1999.
the Maltese agreement
means the Agreement between Australia and Malta for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which is set out in Schedule 24.HistoryDefinition of "the Maltese agreement" inserted by No 125 of 1984.
the Mexican agreement
means the Agreement between the Government of Australia and the Government of the United Mexican States for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income as affected by the protocol to that agreement. A copy of the agreement, and of the protocol, in the English language is set out in Schedule 47.HistoryDefinition of "the Mexican agreement" inserted by No 123 of 2003.
the Netherlands agreement
means the Agreement between the Government of Australia and the Government of the Kingdom of the Netherlands for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and the protocol to that agreement, being the agreement and protocol a copy of each of which in the English language is set out in Schedule 10, as amended by the second Netherlands protocol.HistoryDefinition of "the Netherlands agreement" substituted by No 112 of 1986.
the New Zealand agreement
(Repealed by No 13 of 2010)HistoryDefinition of "the New Zealand agreement" repealed by No 13 of 2010, s 3 and Sch 1 item 11, effective 11 March 2010. The definition formerly read:
the New Zealand agreement
means the Agreement between the Government of Australia and the Government of New Zealand for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which is set out in Schedule 4, as amended by the New Zealand protocol;Definition of "the New Zealand agreement" amended by No 100 of 2006, s 3 and Sch 3 item 1, by inserting ", as amended by the New Zealand protocol" at the end, effective 14 September 2006.
Definition of "the New Zealand agreement" inserted by No 11 of 1973.
the New Zealand protocol
(Repealed by No 13 of 2010)HistoryDefinition of "the New Zealand protocol" repealed by No 13 of 2010, s 3 and Sch 1 item 12, effective 11 March 2010. The definition formerly read:
the New Zealand protocol
means the Protocol amending the Agreement between the Government of Australia and the Government of New Zealand for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income. A copy of the protocol is set out in Schedule 4A.Definition of "the New Zealand protocol" inserted by No 100 of 2006, s 3 and Sch 3 item 2, effective 14 September 2006.
the Norwegian convention
(Repealed by No 136 of 2007)HistoryDefinition of "the Norwegian convention" repealed by No 136 of 2007, s 3 and Sch 2 item 4, effective 3 September 2007. The definition formerly read:
the Norwegian convention
means the Convention between Australia and the Kingdom of Norway for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital and the protocol to that convention, being the convention and protocol a copy of each of which is set out in Schedule 23;Definition of "the Norwegian convention" inserted by No 57 of 1983.
the Papua New Guinea agreement
means the Agreement between Australia and the Independent State of Papua New Guinea for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which is set out in Schedule 29.HistoryDefinition of "the Papua New Guinea agreement" inserted by No 165 of 1989.
the Philippine agreement
means the Agreement between the Government of Australia and the Government of the Republic of the Philippines for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which is set out in Schedule 14.HistoryDefinition of "the Philippine agreement" inserted by No 23 of 1980.
the Polish agreement
means the Agreement between Australia and the Republic of Poland for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which in the English language is set out in Schedule 36.HistoryDefinition of "the Polish agreement" inserted by No 214 of 1991.
the previous Canadian agreement
means the Agreement between the Government of Australia and the Government of Canada for the avoidance of double taxation and the prevention of fiscal evasion with respectto taxes on income that was signed at Mont Tremblant on 1 October 1957.HistoryDefinition of "the previous Canadian agreement" inserted by No 127 of 1980.
the previous New Zealand agreement
(Omitted by No 22 of 1995)HistoryDefinition of "the previous New Zealand agreement" inserted by No 11 of 1973.
the previous United Kingdom agreement
(Repealed by No 123 of 2003)the previous United States convention
means the Convention between the Government of Australia and the Government of the United States of America for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income that was signed at Washington on 14 May 1953.HistoryDefinition of "the previous United States convention" inserted by No 57 of 1983.
the Romanian agreement
means the Agreement between Australia and Romania for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and the protocol to that agreement, being the agreement and protocol a copy of each of which in the English language is set out in Schedule 45.HistoryDefinition of "the Romanian agreement" inserted by No 100 of 2000.
the Russian agreement
means the Agreement between the Government of Australia and the Government of the Russian Federation for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and the protocol to that agreement, being the agreement and protocol a copy of each of which in the English language is set out in Schedule 46.HistoryDefinition of "the Russian agreement" inserted by No 59 of 2002.
the second Belgian protocol
means the Protocol, signed 24 June 2009, amending the Agreement between Australia and the Kingdom of Belgium for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the protocol a copy of which in the English version is set out in Schedule 13B.HistoryDefinition of "the second Belgian protocol" inserted by No 13 of 2010, s 3 and Sch 1 item 13, effective 11 March 2010.
the second Finnish protocol
(Repealed by No 146 of 2007)HistoryDefinition of "the second Finnish protocol" repealed by No 146 of 2007, s 3 and Sch 1 item 6, effective 24 September 2007. The definition formerly read:
the second Finnish protocol
means the Protocol to amend the agreement between Australia and Finland for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the protocol a copy of which in the English language is set out in Schedule 25A.Definition of "the second Finnish protocol" inserted by No 100 of 2000.
the second Malaysian protocol
means the Protocol, signed 28 July 2002, amending the agreement between Australia and Malaysia for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the protocol a copy of which in the English language is set out in Schedule 16B.HistoryDefinition of "the second Malaysian protocol" inserted by No 129 of 2002.
the second Netherlands protocol
means the protocol a copy of which in the English language is set out in Schedule 10A, being the Second Protocol amending the Agreement between Australia and the Kingdom of the Netherlands for the avoidance of double taxation and the prevention of fiscal evasion with respect to tax on income with Protocol.HistoryDefinition of "the second Netherlands protocol" inserted by No 112 of 1986.
the second Singapore protocol
means the Protocol, signed 8 September 2009, amending the Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Singapore for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the protocol a copy of which is set out in Schedule 5B.HistoryDefinition of "the second Belgian protocol" inserted by No 13 of 2010, s 3 and Sch 1 item 13, effective 11 March 2010.
the Singapore agreement
means the Agreement between the Government of Australia and the Government of the Republic of Singapore for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which is set out in Schedule 5, as amended by the first Singapore protocol and the second Singapore protocol.HistoryDefinition of "the Singapore agreement" amended by No 115 of 2010, s 3 and Sch 1 item 3, by substituting "the first Singapore protocol and the second Singapore protocol" for "the Singapore protocol", effective 9 November 2010.
Definition of "the Singapore agreement" amended by No 165 of 1989.
the Singapore protocol
(Repealed by No 115 of 2010)HistoryDefinition of "the Singapore protocol" repealed by No 115 of 2010, s 3 and Sch 1 item 4, effective 9 November 2010. The definition formerly read:
the Singapore protocol
means the Protocol amending the Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Singapore for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the protocol a copy of which is set out in Schedule 5A;Definition of "the Singapore protocol" inserted by No 165 of 1989.
the Slovak agreement
means the Agreement between Australia and the Slovak Republic for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which in the English language is set out in Schedule 43.HistoryDefinition of "the Slovak agreement" inserted by No 149 of 1999.
the South African agreement
means the Agreement between the Government of Australia and the Government of the Republic of South Africa for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and the protocol to that agreement, being the agreement and protocol a copy of each of which in the English language is set out in Schedule 42, as amended by the South African protocol.HistoryDefinition of "the South African agreement" amended by No 111 of 2008, s 3 and Sch 1 item 1, by inserting ", as amended by the South African protocol", effective 31 October 2008.
Definition of "the South African agreement" inserted by No 149 of 1999.
the South African protocol
means the Protocol amending the Agreement between the Government of Australia and the Government of the Republic of South Africa for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income. A copy of the protocol is set out in Schedule 42A.HistoryDefinition of "the South African protocol" inserted by No 111 of 2008, s 3 and Sch 1 item 2, effective 31 October 2008.
the Spanish agreement
means the Agreement between Australia and the Kingdom of Spain for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which in the English language is set out in Schedule 39.HistoryDefinition of "the Spanish agreement" inserted by No 139 of 1992.
the Sri Lankan agreement
means the Agreementbetween Australia and the Democratic Socialist Republic of Sri Lanka for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which in the English language is set out in Schedule 31.HistoryDefinition of "the Sri Lankan agreement" inserted by No 121 of 1990.
the Swedish agreement
means the Agreement between the Government of Australia and the Government of Sweden for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which in the English language is set out in Schedule 17.HistoryDefinition of "the Swedish agreement" inserted by No 28 of 1981.
the Swiss agreement
means the Agreement between the Government of Australia and the Swiss Federal Council for the avoidance of double taxation with respect to taxes on income and the protocol to that agreement, being the agreement and protocol a copy of each of which in the English language is set out in Schedule 15.HistoryDefinition of "the Swiss agreement" inserted by No 23 of 1980.
the Taipei agreement
means:
(a) the Agreement between the Australian Commerce and Industry Office and the Taipei Economic and Cultural Office concerning the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the annex to that agreement;a copy of each of which in the English language is set out in Schedule 41.
HistoryDefinition of "the Taipei Agreement" inserted by No 39 of 1996.
the Thai agreement
means the Agreement between Australia and the Kingdom of Thailand for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which in the English language is set out in Schedule 30.HistoryDefinition of "the Thai agreement" inserted by No 165 of 1989.
the United Kingdom
(Repealed by No 123 of 2003)the United Kingdom agreement
(Repealed by No 123 of 2003)HistoryDefinition of "the United Kingdom agreement" substituted by No 23 of 1980.
the United Kingdom protocol
(Repealed by No 123 of 2003)HistoryDefinition of "the United Kingdom protocol" inserted by No 23 of 1980.
the United States convention
means the Convention between the Government of Australia and the Government of the United States of America for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the convention a copy of which is set out in Schedule 2, as amended by the United States protocol.HistoryDefinition of "the United States convention" amended by No 59 of 2002.
the United States protocol
means the Protocol amending the Convention between the Government of Australia and the Government of the United States of America for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the protocol a copy of which is set out in Schedule 2A.HistoryDefinition of "the United States protocol" inserted by No 59 of 2002.
the Vietnamese agreement
means the Agreement between the Government of Australia and the Government of the Socialist Republic of Vietnam for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, being the agreement a copy of which in the English language is set out in Schedule 38, as amended by the Vietnamese notes.HistoryDefinition of "the Vietnamese agreement" amended by No 80 of 1997 and inserted by No 139 of 1992.
the Vietnamese notes
means the Exchange of Notes between the Government of Australia and the Government of the Socialist Republic of Vietnam amending the Vietnamese agreement, that was carried out on 22 November 1996. A copy of the Notes is set out in Schedule 38A.HistoryDefinition of "the Vietnamese notes" inserted by No 80 of 1997.
United Kingdom tax
(Repealed by No 123 of 2003)
Act No 45 of 2011, s 3 and Sch 1 items 70-72 contain the following transitional provisions:
Part 2 - Transitional provisions
70 Definitions
70
In this Part:commencement day
means the day this Schedule commences [27 June 2011].new Act
means the International Tax Agreements Act 1953 as amended by this Schedule.old Act
71 Transitional - amendments operate prospectively
means the International Tax Agreements Act 1953 as in force before the commencement day.
(1)
This item applies to a provision of an agreement that has the force of law on the commencement day because of section 5 of the new Act.
(2)
Despite section 5 of the new Act, for each day before the commencement day, the provision of the agreement continues to have the force of law in accordance with the old Act.
72 Transitional - new description of agreements do not affect their legal operation
(1)
This item applies to a provision of an agreement that:
(a) had the force of law under the old Act immediately before the commencement day; and
(b) is not covered by section 5 or 5A of the new Act.
(2)
To avoid doubt, the provision continues to have the force of law, on and after the commencement day, under the new Act.
Note:
This means the changes made by this Schedule have no effect on the provision's legal operation.
S 3(1) amended by No 52 of 1976 and No 129 of 1974.
3(2)
For the purpose of this Act and the Assessment Act, a reference in an agreement to profits of an activity or business shall, in relation to Australian tax, be read, where the context so permits, as a reference to taxable income derived from that activity or business.
3(2A)
After the commencement of this subsection, a reference in an agreement to income from shares, or to income from other rights participating in profits, does not include a reference to a return on a debt interest (as defined in Subdivision 974-B of the Income Tax Assessment Act 1997).
History
S 3(2A) inserted by No 123 of 2003.
3(3)
For the purposes of this Act, an amount of income derived by a person, being income other than interest or royalties, shall be deemed to be income attributable to interest or royalties, as the case may be:
(a) if the person derived the amount of income by reason of being beneficially entitled to an amount representing the interest or royalties; or
(b) if the person derived the amount of income as a beneficiary in a trust estate and the amount of income can be attributed, directly or indirectly, to the interest or royalties or to an amount that is to be deemed, by any application or successive applications of this subsection, to be an amount of income attributable to the interest or royalties.
3(4)
Where a beneficiary in a trust estate, other than a trust estate that is a prescribed trust estate, in relation to the year of income, is presently entitled to income of the trust estate, that income shall, for the purposes of this Act, be deemed to be an amount of income derived by the person.
History
S 3(4) amended by No 173 of 1985 and No 154 of 1981.
3(5)
To the extent that an agreement provides that the expression immovable property has the meaning it has under the law of Australia, that expression, for the purposes of that agreement, includes real property.
History
S 3(5) inserted by No 105 of 2014, s 3 and Sch 1 item 8, effective 24 September 2014.
Former s 3(5) repealed by No 143 of 2007, s 3 and Sch 1 item 206, applicable in relation to income years, statutory accounting periods and notional accounting periods starting on or after the first 1 July that occurs after 24 September 2007. S 3(5) formerly read:
3(5)
For the purposes of this Act:
(a) all income that is passive income constitutes a single class of income; and
(b) all income that is offshore banking income constitutes a single class of income; and
(c) all income not being passive income or offshore banking income constitutes a single class of income; and
(d) an amount of income that is deemed, for the purposes of any provision of this Act or of the Assessment Act, to be attributable to any other income, being income of a particular class, is to be taken to be income of that class.
Former s 3(5) and (6) substituted for s 3(5) by No 5 of 1991.
Former s 3(5) amended by No 51 of 1986 and No 129 of 1974.
3(6)
(Repealed by No 143 of 2007)
History
S 3(6) repealed by No 143 of 2007, s 3 and Sch 1 item 207, applicable in relation to income years, statutory accounting periods and notional accounting periods starting on or after the first 1 July that occurs after 24 September 2007. S 3(6) formerly read:
3(6)
An expression used in subsection (5) and in Division 18 of Part III of the Assessment Act has the same meaning in that subsection as it has in that Division.
S 3(5) and (6) substituted for s 3(5) by No 5 of 1991.
S 3(6) amended by No 51 of 1986 and No 129 of 1974.
3(7)
(Repealed by No 45 of 2011)
History
S 3(7) repealed by No 45 of 2011, s 3 and Sch 1 item 3, effective 27 June 2011. For transitional provisions see note under s 3(1). S 3(7) formerly read:
3(7)
For the purposes of this Act, the texts in the English language of the 1976 French agreement, the 2006 French convention and the 1969 Japanese agreement shall, unless the context otherwise requires, be construed as if:
(a) words in the singular included the plural; and
(b) words in the plural included the singular.
S 3(7) amended by No 102 of 2008, s 3 and Sch 1 item 6, by inserting "1969", effective 3 October 2008.
S 3(7) amended by No 136 of 2007, s 3 and Sch 1 item 9, by substituting "1976 French agreement, the 2006 French convention" for "French agreement", effective 3 September 2007.
3(7A)
(Repealed by No 45 of 2011)
History
S 3(7A) repealed by No 45 of 2011, s 3 and Sch 1 item 3, effective 27 June 2011. For transitional provisions see note under s 3(1). S 3(7A) formerly read:
3(7A)
For the purposes of this Act, a reference in the 1969 Japanese agreement to an area adjacent to Australia as specified in the Second Schedule to the Petroleum (Submerged Lands) Act 1967-1968 is to be read as including a reference toan area adjacent to Australia as specified in Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
S 3(7A) amended by No 117 of 2008, s 3 and Sch 3 item 16, by substituting "Offshore Petroleum and Greenhouse Gas Storage Act 2006" for "Offshore Petroleum Act 2006", effective 22 November 2008.
S 3(7A) amended by No 102 of 2008, s 3 and Sch 1 item 7, by inserting "1969", effective 3 October 2008.
S 3(7A) inserted by No 17 of 2006, s 3 and Sch 2 item 43, effective 1 July 2008.
3(8)
Where, by virtue of a provision of an agreement, the expression royalties as used in, or in a particular provision of, that agreement has the meaning that that expression has under the law of Australia relating to income tax, that expression has, for the purposes of that agreement or of that particular provision, as the case may be, the meaning that that expression has by virtue of subsection 6(1) of the Income Tax Assessment Act 1936.
History
S 3(8) amended by No 45 of 2011, s 3 and Sch 1 item 4, by substituting "6(1) of the Income Tax Assessment Act 1936" for "6(1) of the Assessment Act", effective 27 June 2011. For transitional provisions see note under s 3(1).
S 3(8) inserted by No 143 of 1976.
3(9)
Where, by virtue of a provision of an agreement, expressions used in, or in a particular provision of, that agreement and not otherwise defined for the purposes of that agreement or of that particular provision have the meanings that those expressions have under the law of Australia relating to income tax, subsection (8) does not affect the interpretation of that agreement or of that particular provision, as the case may be, in relation to the meaning of expressions other than the expression royalties .
History
S 3(9) inserted by No 143 of 1976.
3(10)
For the purposes of this Act, Medicare levy shall be deemed to be income tax and to be imposed as such and, unless the contrary intention appears, references to income tax or tax shall be construed accordingly.
History
S 3(10) inserted by No 51 of 1983.
3(11)
Where:
(a) a beneficiary of a trust estate (not being a prescribed trust estate) who is a resident of a country with which, or with the government of which, Australia, or the Government of Australia, has made an agreement before the commencement of this subsection is presently entitled, either directly or through one or more interposed trust estates, to a share of the income of the trust estate derived from the carrying on by the trustee in Australia of a business through a permanent establishment in Australia; and
(b) under the agreement, the income is to be dealt with in accordance with the article (in this subsection referred to as the business profits article ) of the agreement relating to the taxing of income of an enterprise of a Contracting State where the enterprise carries on a business in the other Contracting State through a permanent establishment in the other Contracting State;
for the purpose of determining whether the beneficiary's share of the income may be taxed in Australia in accordance with the business profits article:
(c) the beneficiary shall be deemed to carry on in Australia, through a permanent establishment in Australia, the business carried on in Australia by the trustee; and
(d) the beneficiary's share of the income shall be deemed to be attributable to that permanent establishment.
History
S 3(11) amended by No 173 of 1985 and inserted by No 125 of 1984.
3(11A)
If:
(a) the licensee of a spectrum licence (within the meaning of the Radiocommunications Act 1992), or a person authorised under section 68 of that Act by the licensee, derives income from operating radiocommunications devices (within the meaning of that Act) under the licence or from authorising others to do so; and
(b) the licensee or authorised person is a resident of a country (other than Australia), or a territory (other than an Australian-controlled territory), to whose residents an agreement applies; and
(c) under the agreement, the income is to be dealt with in accordance with the business profits article of the agreement referred to in paragraph 3(11)(b);
for the purpose of determining whether the income may be taxed in Australia in accordance with the business profits article:
(d) the licensee or authorised person is taken to carry on a business, through a permanent establishment, in Australia; and
(e) the income is taken to be attributable to that permanent establishment.
History
S 3(11A) inserted by No 54 of 1999.
3(12)
In subsections (11) and (11A):
Contracting State
, in relation to an agreement, means a country which, or the government of which, is a party to the agreement.
corporate unit trust
(Repealed by No 173 of 1985)
permanent establishment
in relation to an agreement, has the same meaning as in the agreement.
History
S 3(12) amended by No 54 of 1999 and No 125 of 1984.
SECTION 3AAA DEFINITIONS - CURRENT AGREEMENTS 3AAA(1)
In this Act:
(a) the Agreement between the Government of Australia and the Government of the Argentine Republic for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that agreement;
each done at Buenos Aires on 27 August 1999.
Note:
The text of this agreement and protocol is set out in Australian Treaty Series 1999 No. 36 ([1999] ATS 36).
Aruban agreement
means the Agreement between the Government of Australia and the Kingdom of the Netherlands, in respect of Aruba, 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, done at Canberra on 16 December 2009.
Note:
The text of this agreement is set out in Australian Treaty Series 2011 No. 35 ([2011] ATS 35).
History
Definition of "Aruban agreement" amended by No 14 of 2013, s 3 and Sch 1 item 6, by substituting the note at the end, effective 27 March 2013. The note formerly read:
Note:
In 2011, the text of this agreement was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Definition of "Aruban agreement" inserted by No 45 of 2011, s 3 and Sch 2 item 1, effective 27 June 2011.
Austrian agreement
means the Agreement between Australia and the Republic of Austria for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Vienna on 8 July 1986.
Note 1:
The text of this agreement is set out in Australian Treaty Series 1988 No. 21 ([1988] ATS 21).
Note 2:
Section 11R gives this agreement the force of law.
Belgian agreement
means the Agreement between Australia and the Kingdom of Belgium for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Canberra on 13 October 1977.
Note 1:
The text of this agreement is set out in Australian Treaty Series 1979 No. 21 ([1979] ATS 21).
Note 2:
Section 11C gives this agreement the force of law.
Belgian protocol (No. 1)
means the protocol, done at Canberra on 20 March 1984, amending the Belgian agreement.
Note:
The text of this protocol is set out in Australian Treaty Series 1986 No. 25 ([1986] ATS 25).
Belgian protocol (No. 2)
means the protocol, done at Paris on 24 June 2009, amending the Belgian agreement (as amended by the Belgian protocol (No. 1)).
Note:
The text of this protocol is set out in Australian Treaty Series 2014 No. 37 ([2014] ATS 37).
History
Definition of "Belgian protocol (No. 2)" amended by No 40 of 2023, s 3 and Sch 1 item 4, by substituting the note, effective 29 June 2023. The note formerly read:
Note:
In 2011, the text of this protocol was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
British Virgin Islands agreement
means the Agreement between the Government of Australia and the Government of the British Virgin Islands for the allocation of taxing rights with respect to certain income of individuals, done at London on 27 October 2008.
Note:
The text of this agreement is set out in Australian Treaty Series 2010 No. 13 ([2010] ATS 13).
Canadian convention
means the Convention between Australia and Canada for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Canberra on 21 May 1980.
Note 1:
The text of this convention is set out in Australian Treaty Series 1981 No. 14 ([1981] ATS 14).
Note 2:
Section 6A gives this convention the force of law.
Canadian protocol (No. 1)
means the protocol, done at Canberra on 23 January 2002, amending the Canadian convention.
Note:
The text of this protocol is set out in Australian Treaty Series 2002 No. 26 ([2002] ATS 26).
(a) the Convention between Australia and the Republic of Chile for the avoidance of double taxation with respect to taxes on income and fringe benefits and the prevention of fiscal evasion; and
(b) the protocol to that convention;
each done at Santiago on 10 March 2010.
Note:
The text of this convention and protocol is set out in Australian Treaty Series 2013 No. 7 ([2013] ATS 7).
History
Definition of "Chilean convention" amended by No 40 of 2023, s 3 and Sch 1 item 5, by inserting "and protocol" in the note, effective 29 June 2023.
Definition of "Chilean convention" amended by No 105 of 2014, s 3 and Sch 1 item 9, by substituting the note at the end, effective 24 September 2014. The note formerly read:
Note:
In 2011, the text of this convention and protocol was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Definition of "Chilean convention" inserted by No 45 of 2011, s 3 and Sch 2 item 2, effective 27 June 2011.
Chinese agreement
means the Agreement between the Government of Australia and the Government of the People's Republic of China for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Canberra on 17 November 1988.
Note:
The text of this agreement is set out in Australian Treaty Series 1990 No. 45 ([1990] ATS 45).
Chinese airline profits agreement
means the Agreement between the Government of Australia and the Government of the People's Republic of China for the avoidance of double taxation of income and revenues derived by air transport enterprises from international air transport, done at Beijing on 22 November 1985.
Note 1:
The text of this agreement is set out in Australian Treaty Series 1986 No. 31 ([1986] ATS 31).
Note 2:
Section 11Q gives this agreement the force of law.
Cook Islands agreement
means the 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, done at Rarotonga on 27 October 2009.
Note:
The text of this agreement is set out in Australian Treaty Series 2014 No. 13 ([2014] ATS 13).
History
Definition of "Cook Islands agreement" amended by No 40 of 2023, s 3 and Sch 1 item 6, by substituting the note, effective 29 June 2023. The note formerly read:
Note:
In 2011, the text of this agreement was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Definition of "Cook Islands agreement" inserted by No 45 of 2011, s 3 and Sch 2 item 3, effective 27 June 2011.
Czech agreement
means the Agreement between Australia and the Czech Republic for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Canberra on 28 March 1995.
Note:
The text of this agreement is set out in Australian Treaty Series 1995 No. 30 ([1995] ATS 30).
Danish agreement
means the Agreement between the Government of Australia and the Government of the Kingdom of Denmark for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Canberra on 1 April 1981.
Note 1:
The text of this agreement is set out in Australian Treaty Series 1981 No. 26 ([1981] ATS 26).
Note 2:
Section 11H gives this agreement the force of law.
Fijian agreement
means the Agreement between Australia and Fiji for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Canberra on 15 October 1990.
Note:
The text of this agreement is set out in Australian Treaty Series 1990 No. 44 ([1990] ATS 44).
(a) the Agreement between the Government of Australia and the Government of Finland for the avoidance of double taxation with respect to taxes on income and the prevention of fiscal evasion; and
(b) the protocol to that agreement;
each done at Melbourne on 20 November 2006.
Note:
The text of this agreement and protocol is set out in Australian Treaty Series 2007 No. 36 ([2007] ATS 36).
(a) the Convention between the Government of Australia and the Government of the French Republic for the avoidance of double taxation with respect to taxes on income and the prevention of fiscal evasion; and
(b) the protocol to that convention;
each done at Paris on 20 June 2006.
Note 1:
The text of this convention and protocol is set out in Australian Treaty Series 2009 No. 13 ([2009] ATS 13).
Note 2:
Subsection (2) applies to this convention and protocol.
(a) the Agreement between Australia and the Federal Republic of Germany for the elimination of double taxation with respect to taxes on income and on capital and the prevention of fiscal evasion and avoidance; and
(b) the protocol to that agreement;
each done at Berlin on 12 November 2015.
Note:
The text of this agreement (including the protocol) is set out in Australian Treaty Series 2016 No. 23 ([2016] ATS 23).
History
Definition of "German agreement" amended by 83 of 2018, s 3 and Sch 1 item 3, by substituting the note, effective 24 August 2018. The note formerly read:
Note:
In 2016, the text of this agreement was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Definition of "German agreement" substituted by No 64 of 2016, s 3 and Sch 1 item 1, effective 20 October 2016. The definition formerly read:
German agreement
means:
(a) the Agreement between the Commonwealth of Australia and the Federal Republic of Germany for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital and to certain other taxes; and
(b) the protocol to that agreement;each done at Melbourne on 24 November 1972.
Note 1:
The text of this agreement and protocol is set out in Australian Treaty Series 1975 No. 8 ([1975] ATS 8).
Note 2:
Section 11 gives this agreement and protocol the force of law.
Greek airline profits agreement
means the Agreement between the Government of Australia and the Government of the Hellenic Republic for the avoidance of double taxation of income derived from international air transport, done at Canberra on 5 May 1977.
Note:
The text of this agreement is set out in Australian Treaty Series 1981 No. 10 ([1981] ATS 10).
Guernsey agreement
means the Agreement between the Government of Australia and the States of Guernsey 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, done at London on 7 October 2009.
Note:
The text of this agreement is set out in Australian Treaty Series 2011 No. 25 ([2011] ATS 25).
History
Definition of "Guernsey agreement" amended by No 14 of 2013, s 3 and Sch 1 item 7, by substituting the note at the end, effective 27 March 2013. The note formerly read:
Note:
In 2011, the text of this agreement was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Definition of "Guernsey agreement" inserted by No 45 of 2011, s 3 and Sch 2 item 4, effective 27 June 2011.
Hungarian agreement
means the Agreement between Australia and the Republic of Hungary for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Canberra on 29 November 1990.
Note:
The text of this agreement is set out in Australian Treaty Series 1992 No. 18 ([1992] ATS 18).
(a) the Convention between Australia and Iceland for the elimination of double taxation with respect to taxes on income and the prevention of tax evasion and avoidance; and
(b) the protocol to that convention;
each done at Reykjavik on 12 October 2022.
Note:
The text of this convention and protocol could in 2023 be viewed on the Department's website (http://www.treasury.gov.au).
History
Definition of "Icelandic convention" inserted by No 40 of 2023, s 3 and Sch 1 item 1, effective 29 June 2023.
Indian agreement
means the Agreement between the Government of Australia and the Government of the Republic of India for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Canberra on 25 July 1991.
Note:
The text of this agreement is set out in Australian Treaty Series 1991 No. 49 ([1991] ATS 49).
Indian protocol (No. 1)
means the protocol, done at New Delhi on 16 December 2011, amending the Indian agreement.
Note:
The text of this protocol is set out in Australian Treaty Series 2013 No. 22 ([2013] ATS 22).
History
Definition of "Indian protocol (No. 1)" amended by No 105 of 2014, s 3 and Sch 1 item 10, by substituting the note at the end, effective 24 September 2014. The note formerly read:
Note:
In 2013, the text of this protocol was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Definition of "Indian protocol (No. 1)" inserted by No 14 of 2013, s 3 and Sch 1 item 1, effective 27 March 2013.
Indonesian agreement
means the Agreement between the Government of Australia and the Government of the Republic of Indonesia for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Jakarta on 22 April 1992.
Note:
The text of this agreement is set out in Australian Treaty Series 1992 No. 40 ([1992] ATS 40).
Irish agreement
means the Agreement between the Government of Australia and the Government of Ireland for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital gains, done at Canberra on 31 May 1983.
Note 1:
The text of this agreement is set out in Australian Treaty Series 1983 No. 25 ([1983] ATS 25).
Note 2:
Section 11K gives this agreement the force of law.
Isle of Man agreement
means the Agreement between the Government of Australia and the Government of the Isle of Man 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, done at London on 29 January 2009.
Note:
The text of this agreement is set out in Australian Treaty Series 2010 No. 2 ([2010] ATS 2).
(a) the Convention between the Government of Australia and the Government of the State of Israel for the elimination of double taxation with respect to taxes on income and the prevention of tax evasion and avoidance; and
(b) the protocol to that convention;
each done at Canberra on 28 March 2019.
Note:
The text of this convention and protocol is set out in Australian Treaty Series 2019 No. 20 ([2019] ATS 20).
History
Definition of "Israeli convention" amended by No 40 of 2023, s 3 and Sch 1 item 7, by inserting the note, effective 29 June 2023.
Definition of "Israeli convention" inserted by No 107 of 2019, s 3 and Sch 1 item 1, effective 29 November 2019.
Italian airline profits agreement
means the Agreement between the Government of the Commonwealth of Australia and the Government of Italy for the avoidance of double taxation of income derived from international air transport, done at Canberra on 13 April 1972.
Note:
The text of this agreement is set out in Australian Treaty Series 1976 No. 7 ([1976] ATS 7).
(a) the Convention between Australia and the Republic of Italy for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that convention;
each done at Canberra on 14 December 1982.
Note 1:
The text of this convention and protocol is set out in Australian Treaty Series 1985 No. 27 ([1985] ATS 27).
Note 2:
Section 10A gives this convention and protocol the force of law.
(a) the Convention between Australia and Japan for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that convention; and
(c) the exchange of notes relating to that convention;
each done at Tokyo on 31 January 2008.
Note:
The text of this convention and protocol, and these notes, is set out in Australian Treaty Series 2008 No. 21 ([2008] ATS 21).
Jersey agreement
means the Agreement between the Government of Australia and the Government of Jersey 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, done at London on 10 June 2009.
Note:
The text of this agreement is set out in Australian Treaty Series 2012 No. 6 ([2012] ATS 6).
History
Definition of "Jersey agreement" amended by No 14 of 2013, s 3 and Sch 1 item 8, by substituting the note at the end, effective 27 March 2013. The note formerly read:
Note:
In 2011, the text of this agreement was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Kiribati agreement
means the Agreement between Australia and the Republic of Kiribati for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Canberra on 25 March 1991.
Note:
The text of this agreement is set out in Australian Treaty Series 1991 No. 34 ([1991] ATS 34).
(a) the Convention between the Government of Australia and the Government of the Republic of Korea for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that convention;
each done at Canberra on 12 July 1982.
Note 1:
The text of this convention and protocol is set out in Australian Treaty Series 1984 No. 2 ([1984] ATS 2).
Note 2:
Section 11L gives this convention and protocol the force of law.
Malaysian agreement
means the Agreement between the Government of Australia and the Government of Malaysia for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Canberra on 20 August 1980.
Note 1:
The text of this agreement is set out in Australian Treaty Series 1981 No. 15 ([1981] ATS 15).
Note 2:
Section 11F gives this agreement the force of law.
Note 3:
The text of letters exchanged about the tax sparing provision in Article 23 of this agreement is set out in Australian Treaty Series 1999 No. 24 ([1999] ATS 24).
Malaysian protocol (No. 1)
means the protocol, done at Sydney on 2 August 1999, amending the Malaysian agreement.
Note:
The text of this protocol is set out in Australian Treaty Series 2000 No. 25 ([2000] ATS 25).
Malaysian protocol (No. 2)
means:
(a) the protocol amending the Malaysian agreement (as amended by the Malaysian protocol (No. 1)); and
(b) the exchange of letters relating to that protocol;
each done at Genting Highlands on 28 July 2002.
Note:
The text of this protocol and these letters is set out in Australian Treaty Series 2004 No. 1 ([2004] ATS 1).
Malaysian protocol (No. 3)
means the protocol amending the Malaysian agreement (as amended by the Malaysian protocol (No. 1) and the Malaysian protocol (No. 2)), done at Canberra on 24 February 2010.
Note:
The text of this protocol is set out in Australian Treaty Series 2011 No. 27 ([2011] ATS 27).
History
Definition of "Malaysian protocol (No. 3)" amended by No 14 of 2013, s 3 and Sch 1 item 9, by substituting the note at the end, effective 27 March 2013. The note formerly read:
Note:
In 2011, the text of this protocol was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Definition of "Malaysian protocol (No. 3)" inserted by No 45 of 2011, s 3 and Sch 2 item 5, effective 27 June 2011.
Maltese agreement
means the Agreement between Australia and Malta for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Malta on 9 May 1984.
Note 1:
The text of this agreement is set out in Australian Treaty Series 1985 No. 15 ([1985] ATS 15).
Note 2:
Section 11N gives this agreement the force of law.
Marshall Islands agreement
means the Agreement between the Government of Australia and the Government of the Republic of the Marshall Islands 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, done at Majuro on 12 May 2010.
Note:
In 2023, the text of this agreement was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
History
Definition of "Marshall Islands agreement" amended by No 40 of 2023, s 3 and Sch 1 item 8, by substituting "2023" for "2013" in the note, effective 29 June 2023.
Definition of "Marshall Islands agreement" inserted by No 14 of 2013, s 3 and Sch 1 item 2, effective 27 March 2013.
Mauritius agreement
means the Agreement between the Government of Australia and the Government of the Republic of Mauritius 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, done at Port Louis on 8 December 2010.
Note:
The text of this agreement is set out in Australian Treaty Series 2013 No. 18 ([2013] ATS 18).
History
Definition of "Mauritius agreement" amended by No 105 of 2014, s 3 and Sch 1 item 11, by substituting the note at the end, effective 24 September 2014. The note formerly read:
Note:
In 2013, the text of this agreement was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Definition of "Mauritius agreement" inserted by No 14 of 2013, s 3 and Sch 1 item 3, effective 27 March 2013.
(a) the Agreement between the Government of Australia and the Government of the United Mexican States for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that agreement;
each done at Mexico City on 9 September 2002.
Note:
The text of this agreement and protocol is set out in Australian Treaty Series 2004 No. 4 ([2004] ATS 4).
Multilateral Convention
means the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting done at Paris on 7 June 2017.
Note:
The text of this convention is set out in Australian Treaty Series 2019 No. 1 ([2019] ATS 1).
History
Definition of "Multilateral Convention" amended by No 40 of 2023, s 3 and Sch 1 item 9, by substituting the note, effective 29 June 2023. The note formerly read:
Note:
In 2018, the text of this convention was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Definition of "Multilateral Convention" inserted by No 83 of 2018, s 3 and Sch 1 item 1, effective 24 August 2018.
(a) the Agreement between Australia and the Kingdom of the Netherlands for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that agreement;
each done at Canberra on 17 March 1976.
Note:
The text of this agreement and protocol is set out in Australian Treaty Series 1976 No. 24 ([1976] ATS 24).
Netherlands protocol (No. 2)
means the protocol, done at Canberra on 30 June 1986, amending the Netherlands agreement.
Note:
The text of this protocol is set out in Australian Treaty Series 1987 No. 22 ([1987] ATS 22).
New Zealand convention
means the Convention between Australia and New Zealand for the avoidance of double taxation with respect to taxes on income and fringe benefits and the prevention of fiscal evasion, done at Paris on 26 June 2009.
Note:
The text of this convention is set out in Australian Treaty Series 2010 No. 10 ([2010] ATS 10).
Norwegian convention
means the Convention between Australia and the Kingdom of Norway for the avoidance of double taxation with respect to taxes on income and the prevention of fiscal evasion, done at Canberra on 8August 2006.
Note:
The text of this convention is set out in Australian Treaty Series 2007 No. 32 ([2007] ATS 32).
Papua New Guinea agreement
means the Agreement between Australia and the Independent State of Papua New Guinea for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Canberra on 24 May 1989.
Note:
The text of this agreement is set out in Australian Treaty Series 1989 No. 37 ([1989] ATS 37).
Philippine agreement
means the Agreement between the Government of Australia and the Government of the Republic of the Philippines for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Manila on 11 May 1979.
Note 1:
The text of this agreement is set out in Australian Treaty Series 1980 No. 16 ([1980] ATS 16).
Note 2:
Section 11D gives this agreement the force of law.
Polish agreement
means the Agreement between Australia and the Republic of Poland for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Canberra on 7 May 1991.
Note:
The text of this agreement is set out in Australian Treaty Series 1992 No. 14 ([1992] ATS 14).
(a) the Agreement between Australia and Romania for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that agreement;
each done at Canberra on 2 February 2000.
Note:
The text of this agreement and protocol is set out in Australian Treaty Series 2001 No. 4 ([2001] ATS 4).
(a) the Agreement between the Government of Australia and the Government of the Russian Federation for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that agreement;
each done at Canberra on 7 September 2000.
Note:
The text of this agreement and protocol is set out in Australian Treaty Series 2003 No. 23 ([2003] ATS 23).
Samoan agreement
means the Agreement between the Government of Australia and the Government of Samoa 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, done at Canberra on 16 December 2009.
Note:
In 2023, the text of this agreement was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
History
Definition of "Samoan agreement" amended by No 40 of 2023, s 3 and Sch 1 item 10, by substituting "2023" for "2011" in the note, effective 29 June 2023.
Definition of "Samoan agreement" inserted by No 45 of 2011, s 3 and Sch 2 item 6, effective 27 June 2011.
Singaporean agreement
means the Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Singapore for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Canberra on 11 February 1969.
Note 1:
The text of this agreement is set out in Australian Treaty Series 1969 No. 14 ([1969] ATS 14).
Note 2:
Section 7 gives this agreement the force of law.
Note 3:
The text of notes exchanged about the tax sparing provisions in Article 18 of this agreement is set out in the Australian Treaty Series at [1975] ATS 18, [1981] ATS 31 and [1989] ATS 26.
Singaporean protocol (No. 1)
means the protocol, done at Canberra on 16 October 1989, amending the Singaporean agreement.
Note:
The text of this protocol is set out in Australian Treaty Series 1990 No. 3 ([1990] ATS 3).
Singaporean protocol (No. 2)
means the protocol, done at Canberra on 8 September 2009, amending the Singaporean agreement (as amended by the Singaporean protocol (No. 1)).
Note:
The text of this protocol is set out in Australian Treaty Series 2010 No. 26 ([2010] ATS 26).
Slovak agreement
means the Agreement between Australia and the Slovak Republic for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Canberra on 24 August 1999.
Note:
The text of this agreement is set out in Australian Treaty Series 1999 No. 35 ([1999] ATS 35).
South African agreement
means:
(a) the Agreement between the Government of Australia and the Government of the Republic of South Africa for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that agreement;
each done at Canberra on 1 July 1999.
Note:
The text of this agreement and protocol is set out in Australian Treaty Series 1999 No. 34 ([1999] ATS 34).
South African protocol (No. 2)
means the protocol, done at Pretoria on 31 March 2008, amending the South African agreement.
Note:
The text of this protocol is set out in Australian Treaty Series 2008 No. 18 ([2008] ATS 18).
(a) the Agreement between Australia and the Kingdom of Spain for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that agreement;
each done at Canberra on 24 March 1992.
Note:
The text of this agreement and protocol is set out in Australian Treaty Series 1992 No. 41 ([1992] ATS 41).
Sri Lankan agreement
means the Agreement between Australia and the Democratic Socialist Republic of Sri Lanka for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Canberra on 18 December 1989.
Note:
The text of this agreement is set out in Australian Treaty Series 1991 No. 42 ([1991] ATS 42).
Swedish agreement
means the Agreement between the Government of Australia and the Government of Sweden for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Canberra on 14 January 1981.
Note 1:
The text of this agreement is set out in Australian Treaty Series 1981 No. 18 ([1981] ATS 18).
Note 2:
Section 11G gives this agreement the force of law.
Swiss agreement
(Repealed by No 105 of 2014)
History
Definition of "Swiss agreement" repealed by No 105 of 2014, s 3 and Sch 1 item 1, effective 24 September 2014. The definition formerly read:
Swiss agreement
means:
(a) the Agreement between Australia and Switzerland for the avoidance of double taxation with respect to taxes on income; and
(b) the protocol to that agreement;each done at Canberra on 28 February 1980.
Note 1:
The text of this agreement and protocol is set out in Australian Treaty Series 1981 No. 5 ([1981] ATS 5).
Note 2:
Section 11E gives this agreement and protocol the force of law.
(a) the Convention between Australia and the Swiss Confederation for the Avoidance of Double Taxation with respect to Taxes on Income; and
(b) the protocol to that convention;
each done at Sydney on 30 July 2013.
Note:
The text of this convention and protocol is set out in Australian Treaty Series 2014 No. 33 ([2014] ATS 33).
History
Definition of "Swiss convention" amended by No 64 of 2016, s 3 and Sch 1 item 7, by substituting the note, effective 20 October 2016. The note formerly read:
Note:
In 2013, the text of this convention and protocol was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Definition of "Swiss convention" inserted by No 105 of 2014, s 3 and Sch 1 item 2, effective 24 September 2014.
(a) the Agreement between the Australian Commerce and Industry Office and the Taipei Economic and Cultural Office concerning the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the annex to that agreement;
each done at Canberra on 29 May 1996. A copy of this agreement and annex is set out in Schedule 1.
Thai agreement
means the Agreement between Australia and the Kingdom of Thailand for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Canberra on 31 August 1989.
Note:
The text of this agreement is set out in Australian Treaty Series 1989 No. 36 ([1989] ATS 36).
(a) the Convention between the Government of Australia and the Government of the Republic of Turkey for the avoidance of double taxation with respect to taxes on income and the prevention of fiscal evasion; and
(b) the protocol to that convention;
each done at Ankara on 28 April 2010.
Note:
The text of this convention and protocol is set out in Australian Treaty Series 2013 No. 19 ([2013] ATS 19).
History
Definition of "Turkish convention" amended by No 40 of 2023, s 3 and Sch 1 item 11, by inserting "and protocol" in the note, effective 29 June 2023.
Definition of "Turkish convention" amended by No 105 of 2014, s 3 and Sch 1 item 12, by substituting the note at the end, effective 24 September 2014. The note formerly read:
Note:
In 2011, the text of this convention and protocol was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).
Definition of "Turkish convention" inserted by No 45 of 2011, s 3 and Sch 2 item 7, effective 27 June 2011.
United Kingdom convention
means:
(a) the Convention between the Government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital gains; and
(b) the exchange of notes relating to that convention;
each done at Canberra on 21 August 2003.
Note:
The text of this convention and notes is set out in Australian Treaty Series 2003 No. 22 ([2003] ATS 22).
United States convention
means the Convention between the Government of Australia and the Government of the United States of America for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Sydney on 6 August 1982.
Note:
The text of this convention is set out in Australian Treaty Series 1983 No. 16 ([1983] ATS 16).
United States protocol (No. 1)
means the protocol, done at Canberra on 27 September 2001, amending the United States convention.
Note:
The text of this protocol is set out in Australian Treaty Series 2003 No. 14 ([2003] ATS 14).
Vietnamese agreement
means the Agreement between the Government of Australia and the Government of the Socialist Republic of Vietnam for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Hanoi on 13 April 1992.
Note 1:
The text of this agreement is set out in Australian Treaty Series 1992 No. 44 ([1992] ATS 44).
Note 2:
The text of letters exchanged about the tax sparing provision in Article 23 of this agreement is set out in Australian Treaty Series 2003 No. 9 ([2003] ATS 9).
Vietnamese notes (No. 1)
means the exchange of notes, done at Canberra on 22 November 1996, amending the Vietnamese agreement.
Note:
The text of these notes is set out in Australian Treaty Series 1997 No. 20 ([1997] ATS 20).
3AAA(2)
For the purposes of this Act, when construing the English language text of the French convention:
(a) words in the singular include the plural; and
(b) words in the plural include the singular;
unless the contrary intention appears.
History
S 3AAA inserted by No 45 of 2011, s 3 and Sch 1 item 5, effective 27 June 2011. For transitional provisions see note under s 3(1).
In this Act:
Canadian 1957 agreement
means the Agreement between the Government of the Commonwealth of Australia and the Government of Canada for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Mont Tremblant on 1 October 1957.
Note:
The text of this agreement is set out in Australian Treaty Series 1958 No. 12 ([1958] ATS 12).
(a) the Agreement between Australia and Finland for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that agreement;
each done at Canberra on 12 September 1984.
Note:
The text of this agreement and protocol is set out in Australian Treaty Series 1986 No. 6 ([1986] ATS 6).
Finnish 1997 protocol
means the protocol, done at Canberra on 5 November 1997, amending the Finnish 1984 agreement.
Note:
The text of this protocol is set out in Australian Treaty Series 2000 No. 24 ([2000] ATS 24).
French 1969 airline profits agreement
means the Agreement between the Government of the Commonwealth of Australia and the Government of the French Republic for the avoidance of double taxation of income derived from international air transport, done at Canberra on 27 March 1969.
Note:
The text of this agreement is set out in Australian Treaty Series 1970 No. 13 ([1970] ATS 13).
French 1976 agreement
means the Agreement between the Government of Australia and the Government of the French Republic for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Canberra on 13 April 1976.
Note 1:
The text of this agreement is set out in Australian Treaty Series 1977 No. 21 ([1977] ATS 21).
Note 2:
Subsection (2) applies to this agreement.
French 1989 protocol
means the protocol, done at Paris on 19 June 1989, amending the French 1976 agreement.
Note:
The text of this protocol is set out in Australian Treaty Series 1990 No. 26 ([1990] ATS 26).
(a) the Agreement between the Commonwealth of Australia and the Federal Republic of Germany for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital and to certain other taxes; and
(b) the protocol to that agreement;
each done at Melbourne on 24 November 1972.
Note 1:
The text of this agreement and protocol is set out in Australian Treaty Series 1975 No. 8 ([1975] ATS 8).
Note 2:
Section 11 continues to give this agreement and protocol the force of law in respect of certain income.
History
Definition of "German 1972 agreement" inserted by No 64 of 2016, s 3 and Sch 1 item 2, effective 20 October 2016.
Japanese 1969 agreement
means:
(a) the Agreement between the Commonwealth of Australia and Japan for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income; and
(b) the protocol to that agreement;
each done at Canberra on 20 March 1969.
Note 1:
The text of this agreement and protocol is set out in Australian Treaty Series 1970 No. 9 ([1970] ATS 9).
Note 2:
Subsections (2) and (3) apply to this agreement and protocol.
New Zealand 1960 agreement
means the Agreement between the Government of the Commonwealth of Australia and the Government of New Zealand for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Canberra on 12 May 1960.
Note:
The text of this agreement is set out in Australian Treaty Series 1960 No. 6 ([1960] ATS 6).
New Zealand 1972 agreement
means the Agreement between the Government of the Commonwealth of Australia and the Government of New Zealand for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Melbourne on 8 November 1972.
Note:
The text of this agreement is set out in Australian Treaty Series 1973 No. 11 ([1973] ATS 11).
New Zealand 1995 agreement
means the Agreement between the Government of Australia and the Government of New Zealand for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Melbourne on 27 January 1995.
Note:
The text of this agreement is set out in Australian Treaty Series 1997 No. 23 ([1997] ATS 23).
New Zealand 2005 protocol
means the protocol, done at Melbourne on 15 November 2005, amending the New Zealand 1995 agreement.
Note:
The text of this protocol is set out in Australian Treaty Series 2007 No. 5 ([2007] ATS 5).
Norwegian 1982 convention
means:
(a) the Convention between Australia and the Kingdom of Norway for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital; and
(b) the protocol to that convention;
each done at Canberra on 6 May 1982.
Note:
The text of this convention and protocol is set out in Australian Treaty Series 1983 No. 19 ([1983] ATS 19).
(a) the Agreement between Australia and Switzerland for the avoidance of double taxation with respect to taxes on income; and
(b) the protocol to that agreement;
each done at Canberra on 28 February 1980.
Note 1:
The text of this agreement and protocol is set out in Australian Treaty Series 1981 No. 5 ([1981] ATS 5).
Note 2:
Section 11E continues to give this agreement and protocol the force of law in respect of certain income.
History
Definition of "Swiss 1980 agreement" amended by No 64 of 2016, s 3 and Sch 1 item 8, by omitting "or fringe benefits" after "certain income" in note 2, effective 20 October 2016.
Definition of "Swiss 1980 agreement" inserted by No 105 of 2014, s 3 and Sch 1 item 3, effective 24 September 2014.
United Kingdom 1946 agreement
means the Agreement between the Government of Australia and the Government of the United Kingdom for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at London on 29 October 1946.
Note:
The text of this agreement is set out in Australian Treaty Series 1947 No. 18 ([1947] ATS 18).
United Kingdom 1967 agreement
means the Agreement between the Government of the Commonwealth of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital gains, done at Canberra on 7 December 1967.
Note:
The text of this agreement is set out in Australian Treaty Series 1968 No. 9 ([1968] ATS 9).
United Kingdom 1980 protocol
means the protocol, done at Canberra on 29 January 1980, amending the United Kingdom 1967 agreement.
Note:
The text of this protocol is set out in Australian Treaty Series 1980 No. 22 ([1980] ATS 22).
United States 1953 convention
means the Convention between the Government of the Commonwealth of Australia and the Government of the United States of America for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, done at Washington on 14 May 1953.
Note:
The text of this convention is set out in Australian Treaty Series 1953 No. 4 ([1953] ATS 4).
3AAB(2)
For the purposes of this Act, when construing the English language texts of the French 1976 agreement and the Japanese 1969 agreement:
(a) words in the singular include the plural; and
(b) words in the plural include the singular;
unless the contrary intention appears.
3AAB(3)
For the purposes of this Act, a reference in the Japanese 1969 agreement to an area adjacent to Australia as specified in the Second Schedule to the Petroleum (Submerged Lands) Act 1967-1968 includes a reference to an area adjacent to Australia as specified in Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006.
History
S 3AAB inserted by No 45 of 2011, s 3 and Sch 1 item 5, effective 27 June 2011. For transitional provisions see note under s 3(1).
This section applies to a beneficiary of a widely held unit trust if:
(a) the beneficiary is a resident of a country (other than Australia) for the purposes of an agreement that is given the force of law under this Act; and
(b) the beneficiary is presently entitled, either:
(i) directly; or
to a share of the income of the widely held unit trust derived from the carrying on by the trustee in Australia of funds management activities through a permanent establishment in Australia (the funds management income ).
(ii) indirectly through fixed entitlements in one or more interposed trust estates (whether widely held unit trusts or not);
3AA(2)
In working out for the purposes of the Assessment Act whether the funds management income of the beneficiary is attributable to sources in Australia, these provisions (the source of income provisions ) do not apply:
(a) Article 21 of the United Kingdom convention;
(b) a corresponding provision of another agreement;
(c) subsections 11(2), 11S(2) and 11ZF(2) of this Act, and any provision of this Act of similar effect enacted after the commencement of this section;
(d) section 764-5 of the Income Tax Assessment Act 1997.
History
S 3AA(2) amended by No 107 of 2019, s 3 and Sch 2 items 3 and 4, by substituting "11(2)" for "11(3)" in para (c) and inserting para (d), effective 1 January 2020.
S 3AA(2) amended by No 45 of 2011, s 3 and Sch 1 item 6, by omitting "2003" before "United Kingdom" in para (a), effective 27 June 2011. For transitional provisions see note under s 3(1).
3AA(3)
However, the source of income provisions do apply to the extent to which the income derived from the carrying on by the trustee of funds management activities is adjusted under:
(a) Article 7(2) or 9(1) of the United Kingdom convention; or
(b) a corresponding provision of another agreement.
History
S 3AA(3) amended by No 45 of 2011, s 3 and Sch 1 item 6, by omitting "2003" before "United Kingdom" in para (a), effective 27 June 2011. For transitional provisions see note under s 3(1).
3AA(4)
In this section:
closely held
has the meaning given by section 272-105 in Schedule 2F to the Income Tax Assessment Act 1936.
funds management activities
means activities carried on by:
(a) a managed investment scheme (as defined by section 9 of the Corporations Act 2001) that is a widely held unit trust; or
(b) a managed investment scheme (as so defined) that is a unit trust that is closely held by one or more of these:
(i) a managed investment scheme (as so defined) that is a widely held unit trust;
(ii) a complying superannuation entity;
(iii) a life insurance company.
permanent establishment
, in relation to an agreement, has the same meaning as in the agreement.
widely held unit trust
has the meaning given by section 272-105 in Schedule 2F to the Income Tax Assessment Act 1936.
History
S 3AA inserted by No 21 of 2005.
(a) an agreement makes provision in relation to income, profits or gains from the alienation or disposition of shares or comparable interests in companies, or of interests in other entities, whose assets consist wholly or principally of real property (within the meaning of the agreement) or other interests in relation to land; and
(b) this Act gave that provision the force of law before 27 April 1998. 3A(2) [Scope]
For the purposes of this Act, that provision is taken to extend to the alienation or disposition of shares or any other interests in companies, and in any other entities, the value of whose assets is wholly or principally attributable, whether directly, or indirectly through one or more interposed companies or other entities, to such real property or interests.
3A(3) [Real property etc to be in Australia]However, subsection (2) applies only if the real property or land concerned is situated in Australia (within the meaning of the relevant agreement).
3A(4) [Future amendments]If, after the commencement of this section, this Act is amended so as to give the force of law to an amendment or substitution of a provision mentioned in subsection (1), this section ceases to apply to that provision from the time that the amendment of the Act takes effect.
3A(5) [Definitions]In this section:
entity
has the same meaning as in the Income Tax Assessment Act 1997, but does not include an individual in his or her personal capacity.
History
S 3A inserted by No 114 of 2000.
Subject to subsection (2), the Assessment Act is incorporated and shall be read as one with this Act.
Note:
An effect of this provision is that people who acquire information under this Act are subject to the confidentiality obligations and exceptions in Division 355 in Schedule 1 to the Taxation Administration Act 1953.
History
S 4(1) amended by No 145 of 2010, s 3 and Sch 2 item 56, by inserting the note at the end, effective 17 December 2010.
4(2)
The provisions of this Act have effect notwithstanding anything inconsistent with those provisions contained in the Assessment Act (other than the provisions covered by subsection (3)) or in an Act imposing Australian tax.
History
S 4(2) amended by No 8 of 2022, s 3 and Sch 5 item 5, by substituting "the provisions covered by subsection (3)". for "Part IVA of the Income Tax Assessment Act 1936", effective 1 July 2022.
S 4(2) amended by No 45 of 2011, s 3 and Sch 1 item 7, by substituting "the Income Tax Assessment Act 1936" for "that Act", effective 27 June 2011. For transitional provisions see note under s 3(1).
S 4(2) amended by No 143 of 2007, s 3 and Sch 1 item 208, by omitting "section 160AO or" before "Part IV of that Act", applicable in relation to income years, statutory accounting periods and notional accounting periods starting on or after the first 1 July that occurs after 24 September 2007.
S 4(2) amended by No 110 of 1981.
4(3)
This subsection covers the following provisions: (a) Part IVA of the Income Tax Assessment Act 1936; (b) Subdivision 195-C (Corporate collective investment vehicles) of the Income Tax Assessment Act 1997.
History
S 4(3) inserted by No 8 of 2022, s 3 and Sch 5 item 6, effective 1 July 2022.
SECTION 4AA INCORPORATION OF FRINGE BENEFITS TAX ASSESSMENT ACT 4AA(1)
Subject to subsection (2), the Fringe Benefits Tax Assessment Act 1986 is incorporated and is to be read as one with this Act.
4AA(2)
The provisions of this Act have effect in spite of anything inconsistent with those provisions contained in the Fringe Benefits Tax Assessment Act 1986 (other than section 67 of that Act).
History
S 4AA inserted by No 22 of 1995.
This section applies to the following events:
(a) the entry into force of an agreement;
(b) the giving of notice of termination of an agreement;
(c) the exchange of letters under a provision of an agreement;
(d) the exchange of instruments of ratification under an agreement;
(e) the confirmation of receipt of a notice under a provision of an agreement;
(f) the occurrence of any similar thing.
4A(2)
As soon as practicable after any such event occurs, the Treasurer must, by notifiable instrument, publish particulars of the event.
History
S 4A(2) amended by No 64 of 2020, s 3 and Sch 3 item 254, by substituting "must, by notifiable instrument, publish particulars of the event" for "must cause to be published in the Gazette a notice setting out particulars of the event", effective 1 October 2020. No 64 of 2020, s 3 and Sch 3 item 325 contains the following transitional provision:
325 Transitional - general provision to preserve existing instruments
(1)
Subitem (2) applies to an instrument (however described) made under, or for the purposes of, a provision amended by an item of this Part if:
(a)
the instrument was in force immediately before the commencement of this Part; and
(b)
the provision, as amended, provides for the same instrument, or a similar instrument, to be made as a notifiable instrument or a legislative instrument; and
(c)
item 326 does not apply to the instrument.
(2)
The instrument continues in force (and may be dealt with) as if it had been made under, or for the purposes of, the provision as amended.
History
S 4A inserted by No 165 of 1989.
Subject to this Act, on and after the date of entry into force of a provision of an agreement mentioned below, the provision has the force of law according to its tenor.
Note 1:
The table also lists some provisions of this Act that relate to the agreement.
Note 2:
Some current agreements are given the force of law by other provisions of this Act.
| Current agreements | |
| Agreement | Related provisions |
| Argentine agreement | section 11ZI |
| Aruban agreement | nil |
| Belgian protocol (No. 1) | section 11C |
| Belgian protocol (No. 2) | section 11C |
| British Virgin Islands agreement | nil |
| Canadian protocol (No. 1) | section 6A |
| Chilean convention | nil |
| Chinese agreement | section 11S |
| Cook Islands agreement | nil |
| Czech agreement | nil |
| Fijian agreement | nil |
| Finnish agreement | nil |
| French convention | nil |
| German agreement | nil |
| Greek airline profits agreement | nil |
| Guernsey agreement | nil |
| Hungarian agreement | nil |
| Icelandic convention | nil |
| Indian agreement | section 11J |
| Indian protocol (No. 1) | section 11J |
| Indonesian agreement | nil |
| Isle of Man agreement | nil |
| Israeli convention | nil |
| Italian airline profits agreement | nil |
| Japanese convention | nil |
| Jersey agreement | nil |
| Kiribati agreement | nil |
| Malaysian protocol (No. 1) | sections 11F and 11FA |
| Malaysian protocol (No. 2) | sections 11F and 11FB |
| Malaysian protocol (No. 3) | section 11F |
| Marshall Islands agreement | nil |
| Mauritius agreement | nil |
| Mexican agreement | nil |
| Multilateral Convention | nil |
| Netherlands agreement | section 11A |
| Netherlands protocol (No. 2) | section 11A |
| New Zealand convention | section 6B |
| Norwegian convention | nil |
| Papua New Guinea agreement | nil |
| Polish agreement | section 11ZA |
| Romanian agreement | nil |
| Russian agreement | nil |
| Samoan agreement | nil |
| Singaporean protocol (No. 1) | section 7 |
| Singaporean protocol (No. 2) | section 7 |
| Slovak agreement | nil |
| South African agreement | nil |
| South African protocol (No. 2) | nil |
| Spanish agreement | nil |
| Sri Lankan agreement | nil |
| Swiss convention | nil |
| Taipei agreement | section 11ZF |
| Thai agreement | nil |
| Turkish convention | nil |
| United Kingdom convention | nil |
| United States convention | sections 6 and 20 |
| United States protocol (No. 1) | sections 6 and 20 |
| Vietnamese agreement | nil |
| Vietnamese notes (No. 1) | section 11ZCA |
History
S 5(1) table amended by No 40 of 2023, s 3 and Sch 1 item 2, by inserting table item pertaining to the Icelandic convention, effective 29 June 2023.
S 5(1) table amended by No 60 of 2022, s 3 and Sch 1 items 1 and 2, by substituting "section 11J" for "nil" in table item pertaining with the Indian agreement and table item pertaining with the Indian protocol (No. 1), applicable in relation to assessments for years of income starting on or after 29 December 2022.
S 5(1) table amended by No 72 of 2021, s 3 and Sch 5 item 1, by substituting table item pertaining to the New Zealand convention, effective 1 July 2021.
S 5(1) table amended by No 107 of 2019, s 3 and Sch 1 item 2, by inserting table item pertaining to the Israeli convention, effective 29 November 2019.
S 5(1) table amended by 83 of 2018, s 3 and Sch 1 item 2, by inserting table item pertaining to the Multilateral Convention, effective 24 August 2018.
S 5(1) table amended by No 64 of 2016, s 3 and Sch 1 item 3, by inserting table item pertaining to the German agreement, effective 20 October 2016.
S 5(1) table amended by No 105 of 2014, s 3 and Sch 1 item 4, by inserting table item pertaining to the Swiss convention, effective 24 September 2014.
S 5(1) table amended by No 14 of 2013, s 3 and Sch 1 items 4-5, by inserting table items pertaining to the Indian protocol (No. 1), Marshall Islands agreement, and Mauritius agreement, effective 27 March 2013.
S 5(1) table amended by No 45 of 2011, s 3 and Sch 2 items 8 to 14, by inserting table items pertaining to the Aruban agreement, Chilean convention, Cook Islands agreement, Guernsey agreement, Malaysian protocol (No. 3), Samoan agreement and Turkish convention, effective 27 June 2011.
5(2)
Subsection (1) does not apply to Article 23 of the United States convention (as amended by the United States protocol (No. 1)).
5(3)
The operation of a provision of an agreement provided for by subsection (1) is subject to anything inconsistent with the provision contained in a law of the Commonwealth, or of a State or Territory, that imposes a tax other than Australian tax, unless expressly provided otherwise in that law.
History
S 5(3) inserted by No 18 of 2024, s 3 and Sch 1 item 1, effective 8 April 2024 and applicable in relation to: (a) taxes (other than Australian tax) payable on or after 1 January 2018; and (b) taxes (other than Australian tax) payable in relation to tax periods (however described) that end on or after 1 January 2018.
History
S 5 substituted by No 45 of 2011, s 3 and Sch 1 item 8, effective 27 June 2011. For transitional provisions see note under s 3(1). S 5 formerly read:
SECTION 5 THE 2003 UNITED KINGDOM CONVENTION
5
Subject to this Act, on and after the date of entry into force of the 2003 United Kingdom convention, the provisions of the convention, so far as those provisions affect Australian tax, have the force of law according to their tenor.
S 5 substituted by No 123 of 2003. For transitional provisions see note under s 3(1).
The provisions of each of the agreements mentioned below, so far as those provisions affect Australian tax, continue to have the force of law for tax in respect of income or fringe benefits in relation to which the agreement remains effective.
Note:
Some earlier agreements continue to have the force of law by other provisions of this Act.
| Agreement |
| Canadian 1957 agreement |
| Finnish 1984 agreement |
| Finnish 1997 protocol |
| French 1969 airline profits agreement |
| French 1976 agreement |
| French 1989 protocol |
| Japanese 1969 agreement |
| New Zealand 1960 agreement |
| New Zealand 1972 agreement |
| New Zealand 1995 agreement |
| New Zealand 2005 protocol |
| Norwegian 1982 convention |
| United Kingdom 1946 agreement |
| United Kingdom 1967 agreement |
| United Kingdom 1980 protocol |
| United States 1953 convention |
History
S 5A amended by No 105 of 2014, s 3 and Sch 1 item 5, by inserting the note, effective 24 September 2014.
S 5A substituted by No 45 of 2011, s 3 and Sch 1 item 8, effective 27 June 2011. For transitional provisions see note under s 3(1). S 5A formerly read:
so far as those provisions affect Australian tax, continue to have the force of law for tax in respect of income in relation to which the agreements remain effective. Paragraph 3 of Article 29 of the 2003 United Kingdom convention preserves the operation of Article 16 of the 1967 United Kingdom agreement (which exempts from tax the income of visiting professors and teachers). This applies to individuals who are entitled to the exemption at the time when the 2003 United Kingdom convention enters into force. The exemption is preserved until the individual concerned would have ceased to be entitled to it under the 1967 United Kingdom agreement. Article 16 of the 1967 United Kingdom agreement is affected by Article I of the 1980 Protocol to the 1967 United Kingdom agreement.
SECTION 5A PREVIOUS UNITED KINGDOM AGREEMENTS ETC.
5A
The provisions of:
(a)
the 1946 United Kingdom agreement; and
(b)
the 1967 United Kingdom agreement; and
(c)
the 1967 United Kingdom agreement as amended by the 1980 Protocol to the 1967 United Kingdom agreement;
Note 1:
Note 2:
S 5A substituted by No 123 of 2003 and inserted by No 23 of 1980.
The United States convention (as amended by the United States protocol (No. 1)) does not subject to Australian tax any interest paid by a resident of Australia to a resident of the United States of America that, apart from that convention, would not be subject to Australian tax.
History
S 6 amended by No 45 of 2011, s 3 and Sch 1 items 9 to 11, by repealing s 6(1) and (3), omitting "(4)" and substituting "United States convention (as amended by the United States protocol (No. 1)) does not subject" for "provisions of the convention with the United States of America do not have the effect of subjecting" in s 6(4), effective 27 June 2011. For transitional provisions see note under s 3(1). S 6 formerly read:
S 6(4) inserted by No 129 of 2002.
SECTION 6 CONVENTION WITH UNITED STATES OF AMERICA
6(1)
Subject to this Act, on and after the date of entry into force of the United States convention, the provisions of Articles 1 to 22 (inclusive) and Articles 24 to 29 (inclusive) of the convention, so far as those provisions affect Australian tax, have the force of law in relation to tax in respect of:
(a)
income, being dividends, interest or royalties to which Article 10, 11 or 12, as the case may be, of the convention applies, derived on or after the first day of the second month following the month in which the convention enters into force, and in relation to which the convention remains effective; and
(b)
income to which paragraph (a) does not apply, being income of a year of income commencing on or after the first day of the second month following the month in which the convention enters into force, and in relation to which the convention remains effective.
6(2)
(Omitted by No 165 of 1989)
6(3)
The provisions of the previous United States convention, so far as those provisions affect Australian tax, continue to have the force of law in relation to tax in respect of income in relation to which the convention remains effective.
6(4)
The provisions of the convention with the United States of America do not have the effect of subjecting to Australian tax any interest paid by a resident of Australia to a resident of the United States of America that, apart from that convention, would not be subject to Australian tax.
History
S 6 substituted by No 57 of 1983 and amended by No 216 of 1973.
(Repealed by No 45 of 2011)
History
S 6AA repealed by No 45 of 2011, s 3 and Sch 1 item 12, effective 27 June 2011. For transitional provisions see note under s 3(1). S 6AA formerly read:
SECTION 6AA PROTOCOL WITH THE UNITED STATES OF AMERICA
6AA
Subject to this Act, on and after the date of entry into force of the United States protocol, the provisions of the protocol, so far as those provisions affect Australian tax, have the force of law according to their tenor.
S 6AA inserted by No 59 of 2002.
Subject to this Act, on and after the date of entry into force of the Canadian convention, the provisions of the convention, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law:
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 July 1975 and in relation to which the convention remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July 1975 and in relation to which the convention remains effective.
History
S 6A amended by No 45 of 2011, s 3 and Sch 1 items 13 and 14, by omitting "(1)" from s 6A(1) and repealing s 6A(3), effective 27 June 2011. For transitional provisions see note under s 3(1). S 6A formerly read:
Former s 6A(2A) inserted by No 28 of 1981.
SECTION 6A CONVENTION WITH CANADA
6A(1)
Subject to this Act, on and after the date of entry into force of the Canadian convention, the provisions of the convention, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law:
(a)
in relation to withholding tax - in respect of dividends or interest derived on or after 1 July 1975 and in relation to which the convention remains effective; and
(b)
in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July 1975 and in relation to which the convention remains effective.
6A(2)
(Omitted by No 165 of 1989)
6A(2A)
(Omitted by No 165 of 1989)
History
6A(3)
The provisions of the previous Canadian agreement, so far as those provisions affect Australian tax, continue to have the force of law in relation to tax in respect of income in relation to which the agreement remains effective.
6A(4)
(Repealed by No 129 of 2002)
S 6A substituted by No 127 of 1980.
(Repealed by No 45 of 2011)
History
S 6AB repealed by No 45 of 2011, s 3 and Sch 1 item 15, effective 27 June 2011. For transitional provisions see note under s 3(1). S 6AB formerly read:
SECTION 6AB PROTOCOL WITH CANADA
6AB
Subject to this Act, on and after the date of entry into force of the Canadian protocol, the provisions of the protocol, so far as those provisions affect Australian tax, have, and are to be taken to have had, the force of law according to their tenor.
S 6AB inserted by No 129 of 2002.
This section applies in relation to: (a) income described in paragraph 3 of Article 17 of the New Zealand convention, derived in respect of personal activities exercised by a sportsperson; and (b) income derived by an individual covered by subsection (4) in respect of a sportsperson, if that income is derived from providing services mentioned in paragraph (4)(a) to:
(i) the sportsperson in deriving income mentioned in paragraph (a); or
(ii) a recognised team regularly playing in a league competition (as described in paragraph 3 of Article 17 of the New Zealand convention) of which the sportsperson is a member.
6B(2)
Subsection (3) applies in determining whether an individual was present in Australia on a particular day, for the purposes of determining whether the condition in subparagraph 2(a) of Article 14 of the New Zealand convention was met in relation to: (a) the 2020-21 year of income; or (b) the 2021-22 year of income.
6B(3)
Treat the individual as not being present in Australia on that day if it was impractical, because of measures or arrangements related to the coronavirus known as COVID-19, for the individual to leave Australia on that day and continue to: (a) exercise the personal activities mentioned in paragraph (1)(a); or (b) provide the services mentioned in paragraph (1)(b).
6B(4)
This subsection covers, in respect of a sportsperson, an individual who: (a) provides any of the following services to the sportsperson or to a recognised team of which the sportsperson is a member:
(i) services as a manager, coach, trainer, runner, physician or physiotherapist;
(ii) advertising or promotional services;
(b) is employed by a person that:
(iii) any other similar services; and
(i) employs the sportsperson; or
(ii) if a body corporate employs the sportsperson - is a related body corporate (within the meaning of the Corporations Act 2001) of that body corporate.
6B(5)
In this section:
recognised team
has the same meaning as in paragraph 3 of Article 17 of the New Zealand convention.
sportsperson
has the same meaning as in paragraph 3 of Article 17 of the New Zealand convention.
History
S 6B inserted by No 72 of 2021, s 3 and Sch 5 item 2, effective 1 July 2021.
Former s 6B repealed by No 45 of 2011, s 3 and Sch 1 item 15, effective 27 June 2011. For transitional provisions see note under s 3(1). S 6B formerly read:
SECTION 6B THE 2009 NEW ZEALAND CONVENTION
6B
Subject to this Act, on and after the date of entry into force of a provision of the 2009 New Zealand convention, the provision has the force of law according to its tenor.
Former s 6B substituted by No 13 of 2010, s 3 and Sch 1 item 14, effective 11 March 2010. S 6B formerly read:
S 6B(1A) inserted by No 22 of 1995. S 6B(1) amended by No 22 of 1995. S 6B(2) amended by No 22 of 1995. S 6B(3) amended by No 22 of 1995.
SECTION 6B AGREEMENT WITH NEW ZEALAND
6B(1A)
Subject to this Act, on and after the date of entry into force of the New Zealand agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law according to their tenor.
History
6B(1)
Subject to this Act, the provisions of the 1972 New Zealand agreement, so far as those provisions affect Australian tax, continue to have the force of law:
(a)
in relation to withholding tax - in respect of dividends or interest derived on or after 1 July 1972, and in relation to which the agreement remains effective; and
(b)
in relation to tax other than withholding tax - in respect of income of the year of income that commenced on 1 July 1972, or of a subsequent year of income in relation to which the agreement remains effective.
History
6B(2)
Subject to this Act, the provisions of subparagraph (b) of paragraph (3) of Article 18 of the 1972 New Zealand agreement continue to have the force of law for the purposes of paragraph 23(q) of the Assessment Act in relation to income of the year of income that ended on 30 June 1972, and of the 13 years of income immediately preceding that year of income.
History
6B(3)
The provisions of the 1960 New Zealand agreement, so far as those provisions affect Australian tax, continue to have the force of law in relation to tax in respect of income in relation to which the agreement remains effective.
History
Former s 6B amended by No 52 of 1976 and substituted by No 11 of 1973.
(Repealed by No 45 of 2011)
History
S 6C repealed by No 45 of 2011, s 3 and Sch 1 item 15, effective 27 June 2011. For transitional provisions see note under s 3(1). S 6C formerly read:
so far as those provisions affect Australian tax, continue to have the force of law for tax in respect of income or fringe benefits in relation to which the agreement remains effective.
SECTION 6C PREVIOUS NEW ZEALAND AGREEMENTS
6C
The provisions of each of the following agreements:
(a)
the 1960 New Zealand agreement;
(b)
the 1972 New Zealand agreement;
(c)
the 1995 New Zealand agreement;
(d)
the 1995 New Zealand agreement as amended by the 2005 New Zealand protocol;
S 6C substituted by No 13 of 2010, s 3 and Sch 1 item 14, effective 11 March 2010. S 6C formerly read:
SECTION 6C NEW ZEALAND PROTOCOL
6C
Subject to this Act, on and after the date of entry into force of a provision of the New Zealand protocol, the provision has the force of law according to its tenor.
S 6C inserted by No 100 of 2006, s 3 and Sch 3 item 3, effective 14 September 2006.
Subject to this Act, the provisions of the Singaporean agreement, so far as those provisions affect Australian tax, have the force of law:
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 July 1969, and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of the year of income that commences on 1 July 1969, or of a subsequent year of income in relation to which the agreement remains effective.
History
S 7 amended by No 45 of 2011, s 3 and Sch 1 items 16 and 17, by omitting "(1)" from s 7(1) and substituting "Singaporean agreement" for "Singapore agreement" in s 7(1), effective 27 June 2011. For transitional provisions see note under s 3(1). S 7 formerly read:
Former s 7(2) inserted by No 28 of 1981. Former s 7(3) inserted by No 57 of 1983.SECTION 7 AGREEMENT WITH SINGAPORE
7(1)
Subject to this Act, the provisions of the Singapore agreement, so far as those provisions affect Australian tax, have the force of law:
(a)
in relation to withholding tax - in respect of dividends or interest derived on or after 1 July 1969, and in relation to which the agreement remains effective; and
(b)
in relation to tax other than withholding tax - in respect of income of the year of income that commences on 1 July 1969, or of a subsequent year of income in relation to which the agreement remains effective.
7(2)
(Omitted by No 165 of 1989)
History
7(3)
(Omitted by No 165 of 1989)
History
(Repealed by No 45 of 2011)
History
S 7A repealed by No 45 of 2011, s 3 and Sch 1 item 18, effective 27 June 2011. For transitional provisions see note under s 3(1). S 7A formerly read:
SECTION 7A FIRST PROTOCOL WITH SINGAPORE
7A
Subject to this Act, on and after the date of entry into force of the first Singapore protocol, the provisions of the protocol, so far as those provisions affect Australian tax, have, and are to be taken to have had, the force of law according to their tenor.
S 7A amended by No 115 of 2010, s 3 and Sch 1 item 5, by substituting "the first Singapore protocol" for "the Singapore protocol", effective 9 November 2010.
S 7A inserted by No 165 of 1989.
(Repealed by No 45 of 2011)
History
S 7B repealed by No 45 of 2011, s 3 and Sch 1 item 18, effective 27 June 2011. For transitional provisions see note under s 3(1). S 7B formerly read:
SECTION 7B SECOND PROTOCOL WITH SINGAPORE
7B
Subject to this Act, on and after the date of entry into force of the second Singapore protocol, the provisions of the protocol have the force of law according to their tenor.
S 7B inserted by No 115 of 2010, s 3 and Sch 1 item 6, effective 9 November 2010.
(Repealed by No 45 of 2011)
History
S 8 repealed by No 45 of 2011, s 3 and Sch 1 item 18, effective 27 June 2011. For transitional provisions see note under s 3(1). S 8 formerly read:
Paragraph 5 of Article 31 of the 2008 Japanese convention preserves the operation of Article 15 of the 1969 Japanese agreement (which provides that the income received in respect of teaching or conducting research by visiting professors and teachers is exempt from tax in the country where the teaching or research activities are conducted). This applies to individuals who are entitled to the benefit at the time when the 2008 Japanese convention enters into force. The benefit is preserved until the individual concerned would have ceased to be entitled to it under the 1969 Japanese agreement.
SECTION 8 CONVENTION WITH JAPAN
8(1)
Subject to this Act, on and after the date of entry into force of the 2008 Japanese convention, the provisions of the convention have the force of law according to their tenor.
8(2)
The provisions of the 1969 Japanese agreement, so far as those provisions affect Australian tax, continue to have the force of law in relation to tax in respect of income in relation to which the agreement remains effective.
Note:
S 8 substituted by No 102 of 2008, s 3 and Sch 1 item 8, effective 3 October 2008. S 8 formerly read:
S 8(1) amended by No 52 of 1976. S 8(2) amended by No 129 of 1974.
SECTION 8 AGREEMENT WITH JAPAN
8(1)
Subject to this Act, on and after the date of entry into force of the Japanese agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law-
(a)
in relation to withholding tax - in respect of dividends or interest derived on or after 1 July in the calendar year in which the agreement enters into force, and in relation to which the agreement remains effective; and
(b)
in relation to tax other than withholding tax - in respect of income of the year of income that commences on 1 July in the calendar year in which the agreement enters into force, or of a subsequent year of income in relation to which the agreement remains effective.
History
8(2)
For the purposes of paragraph 5 of the protocol that forms part of the Japanese agreement, as having the force of law in accordance with the last preceding subsection, section 6AA of the Assessment Act shall be taken to be a provision by virtue of which Australian tax law is in force in relation to the areas referred to in that paragraph.
History
8(3)
(Omitted by No 165 of 1989)
(Repealed by No 45 of 2011)
History
S 9 repealed by No 45 of 2011, s 3 and Sch 1 item 18, effective 27 June 2011. For transitional provisions see note under s 3(1). S 9 formerly read:
SECTION 9 THE 2006 FRENCH CONVENTION
9
Subject to this Act, on and after the date of entry into force of a provision of the 2006 French convention, the provision has the force of law according to its tenor.
S 9 and 9A substituted for s 9, 9A and 9B by No 136 of 2007, s 3 and Sch 1 item 10, effective 3 September 2007. S 9 formerly read:
SECTION 9 AIRLINE PROFITS AGREEMENT WITH FRANCE
9(1)
Subject to this Act, on and after the date of entry into force of the French airline profits agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law in relation to tax in respect of income of the year of income that commenced on 1 July 1966, or of a subsequent year of income in relation to which the agreement remains effective.
9(2)
(Omitted by No 165 of 1989)
(Repealed by No 45 of 2011)
History
S 9A repealed by No 45 of 2011, s 3 and Sch 1 item 18, effective 27 June 2011. For transitional provisions see note under s 3(1). S 9A formerly read:
so far as those provisions affect Australian tax, continue to have the force of law for tax in respect of income in relation to which the agreements remain effective. Paragraph 3 of Article 30 of the 2006 French convention preserves the operation of Article 19 of the 1976 French agreement (which provides that the income received in respect of teaching or conducting research by visiting professors and teachers is taxed only in their home country). This applies to individuals who are entitled to the benefit at the time when the 2006 French convention enters into force. The benefit is preserved until the individual concerned would have ceased to be entitled to it under the 1976 French agreement.
SECTION 9A PREVIOUS FRENCH AGREEMENTS ETC
9A
The provisions of:
(a)
the 1969 French airline profits agreement; and
(b)
the 1976 French agreement; and
(c)
the 1976 French agreement as amended by the 1989 French protocol;
Note 1:
Note 2:
Article 19 of the 1976 French agreement is affected by Article 8 of the 1989 French protocol.
S 9 and 9A substituted for s 9, 9A and 9B by No 136 of 2007, s 3 and Sch 1 item 10, effective 3 September 2007. S 9A formerly read:
SECTION 9A AGREEMENT WITH FRANCE
9A(1)
Subject to this Act, on and after the date of entry into force of the French agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law-
(a)
in relation to withholding tax - in respect of dividends or interest derived on or after1 January 1973 and in relation to which the agreement remains effective; and
(b)
in relation to tax other than withholding tax - in respect of income of the year of income that commenced on 1 July 1972 and of a subsequent year of income in relation to which the agreement remains effective.
9A(2)
(Omitted by No 165 of 1989)
9A(3)
For the purposes of the Assessment Act-
(a)
income from a lease of land or from any other direct interest in or over land, being income that under paragraph (2) of Article 5 of the French agreement is to be regarded as income from real property, shall be deemed to be derived from sources in the place in which the land is situated;
(b)
income from the alienation of a lease of land or of any other direct interest in or over land, being income to which paragraph (1) of Article 12 of the French agreement applies, shall be deemed to be derived from sources in the place in which the land is situated; and
(c)
income from the alienation of shares or comparable interests in a real property co-operative or in a company the assets of which consist wholly or principally of real property, being income to which paragraph (2) of Article 12 of the French agreement applies, shall be deemed to be derived from sources in the place in which the real property is situated.
9A(4)
In paragraph (3)(c)-
(a)
the references to real property second and third occurring include a reference to a lease of land and any other direct interest in or over land; and
(b)
the reference to the place in which real property is situated shall, in its application by virtue of paragraph (a) of this subsection in relation to a lease of land or to any other direct interest in or over land, be construed as a reference to the place where the land to which the lease or other direct interest relates is situated.
9A(5)
Where an amount is to be included in the assessable income of a taxpayer in accordance with subparagraph (b) of paragraph (6) or subparagraph (b) of paragraph (7) of Article 9 of the French agreement-
(a)
the amount shall be included in the assessable income of the taxpayer of the year of income in which the amount is paid; and
(b)
the amount shall, for the purposes of this Act and the Assessment Act, be deemed to be a dividend.
S 9A inserted by No 52 of 1976.
(Repealed by No 136 of 2007)
History
S 9 and 9A substituted for s 9, 9A and 9B by No 136 of 2007, s 3 and Sch 1 item 10, effective 3 September 2007. S 9B formerly read:
SECTION 9B PROTOCOL WITH FRANCE
9B
Subject to this Act, on and after the date of entry into force of the French protocol, the provisions of the protocol, so far as those provisions affect Australian tax, have, and are to be taken to have had, the force of law according to their tenor.
S 9B inserted by No 165 of 1989.
(Repealed by No 45 of 2011)
History
S 10 repealed by No 45 of 2011, s 3 and Sch 1 item 18, effective 27 June 2011. For transitional provisions see note under s 3(1). S 10 formerly read:
S 10(1) amended by No 57 of 1983 and No 52 of 1976. Former s 10(2) amended by No 57 of 1983.
SECTION 10 AIRLINE PROFITS AGREEMENT WITH ITALY
10(1)
Subject to this Act, on and after the date of entry into force of the Italian airline profits agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law in relation to tax in respect of income of the year of income that commenced on 1 July 1966, or of a subsequent year of income in relation to which the agreement remains effective.
History
10(2)
(Omitted by No 165 of 1989)
History
S 10 inserted by No 11 of 1973.
Subject to this Act, on and after the date of entry into force of the Italian convention, the provisions of the convention, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 July 1976 and in relation to which the convention remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July 1976 and in relation to which the convention remains effective.
History
S 10A amended by No 45 of 2011, s 3 and Sch 1 item 19, by omitting "(1)" from s 10A(1), effective 27 June 2011. For transitional provisions see note under s 3(1). S 10A formerly read:
SECTION 10A CONVENTION WITH ITALY
10A(1)
Subject to this Act, on and after the date of entry into force of the Italian convention, the provisions of the convention, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law-
(a)
in relation to withholding tax - in respect of dividends or interest derived on or after 1 July 1976 and in relation to which the convention remains effective; and
(b)
in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July 1976 and in relation to which the convention remains effective.
10A(2)
(Omitted by No 165 of 1989)
Former s 10A inserted by No 57 of 1983.
Subject to this Act, the provisions of the German 1972 agreement, so far as those provisions affect Australian tax, continue to have the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 July 1971 and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of the year of income that commenced on 1 July 1971 and of a subsequent year of income in relation to which the agreement remains effective.
History
S 11(1) amended by No 64 of 2016, s 3 and Sch 1 item 5, by substituting "Subject to this Act, the provisions of the German 1972 agreement, so far as those provisions affect Australian tax, continue to have" for "Subject to this Act, on and after the date of entry into force of the German agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have, and shall be deemed to have had,", effective 20 October 2016.
11(2)
For the purposes of the Assessment Act, income that:
(a) is derived by a person who is a resident of the Federal Republic of Germany for the purposes of the German 1972 agreement; and
(b) is income in relation to which the agreement remains effective; and
(c) is income that, under Articles 6 to 8 and 10 to 16 of the agreement, may be taxed in Australia;
is taken to be derived from sources in Australia.
History
S 11(2) inserted by No 64 of 2016, s 3 and Sch 1 item 6, effective 20 October 2016.
11(3)
(Repealed by No 64 of 2016)
History
S 11(3) repealed by No 64 of 2016, s 3 and Sch 1 item 6, effective 20 October 2016. S 11(3) formerly read:
11(3)
For the purposes of the Assessment Act, income derived by a person who is a resident of the Federal Republic of Germany for the purposes of the German agreement, being income that under Articles 6 to 8 and 10 to 16 of the agreement may be taxed in Australia, shall be deemed to be derived from sources in Australia.
History
S 11 inserted by No 129 of 1974.
For the purposes of the Assessment Act, income from a lease of land, income from any other direct interest in or over land, whether or not improved, and income from debt-claims of every kind, excluding bonds or debentures, secured by mortgage of real property or of any other direct interest in or over land, being income that under Article 6 of the Netherlands agreement (as amended by the Netherlands protocol (No. 2)) is to be regarded as income from real property, shall be deemed to be derived from sources in the place in which the land to which the lease, other direct interest or mortgage relates is situated.
History
S 11A amended by No 45 of 2011, s 3 and Sch 1 items 20 to 22, by repealing s 11A(1), omitting "(3)" from s 11A(3), and inserting "(as amended by the Netherlands protocol (No. 2))" in s 11A(3), effective 27 June 2011. For transitional provisions see note under s 3(1). S 11A formerly read:
SECTION 11A AGREEMENT WITH THE KINGDOM OF THE NETHERLANDS
11A(1)
Subject to this Act, on and after the date of entry into force of the Netherlands agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law-
(a)
in relation to withholding tax - in respect of dividends or interest derived on or after 1 July 1975 and in relation to which the agreement remains effective; and
(b)
in relation to tax other than withholding tax - in respect of income of the year of income that commenced on 1 July 1975 and of a subsequent year of income in relation to which the agreement remains effective.
11A(2)
(Omitted by No 165 of 1989)
11A(3)
For the purposes of the Assessment Act, income from a lease of land, income from any other direct interest in or over land, whether or not improved, and income from debt-claims of every kind, excluding bonds or debentures, secured by mortgage of real property or of any other direct interest in or over land, being income that under Article 6 of the Netherlands agreement is to be regarded as income from real property, shall be deemed to be derived from sources in the place in which the land to which the lease, other direct interest or mortgage relates is situated.
S 11A inserted by No 52 of 1976.
(Repealed by No 45 of 2011)
History
S 11AA repealed by No 45 of 2011, s 3 and Sch 1 item 23, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11AA formerly read:
SECTION 11AA SECOND PROTOCOL WITH THE KINGDOM OF THE NETHERLANDS
11AA(1)
Subject to this Act, on and after the date of entry into force of the second Netherlands protocol, the provisions of the protocol, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law in relation to tax in respect of-
(a)
income, being income to which subparagraph (1)(a) of Article 3 of the protocol applies, of any year of income commencing on or after 1 July 1988; and
(b)
income, being income to which subparagraph (1)(b) of Article 3 of the protocol applies, of any year of income commencing on or after 1 July 1986.
11AA(2)
(Omitted by No 165 of 1989)
S 11AA inserted by No 112 of 1986.
(Repealed by No 45 of 2011)
History
S 11B repealed by No 45 of 2011, s 3 and Sch 1 item 23, effective 27 June 2011. For transitional provisions see note under 3(1). S 11B formerly read:
SECTION 11B AIRLINE PROFITS AGREEMENT WITH THE HELLENIC REPUBLIC
11B(1)
Subject to this Act, on and after the date of entry into force of the Greek airline profits agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law in relation to tax in respect of income derived on or after 1 March 1972 and in relation to which the agreement remains effective.
11B(2)
(Omitted by No 165 of 1989)
S 11B amended by No 129 of 2002 and inserted by No 134 of 1977.
Subject to this Act, on and after the date of entry into force of the Belgian agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 January in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective.
History
S 11C amended by No 45 of 2011, s 3 and Sch 1 item 24, by omitting "(1)" from s 11C(1), effective 27 June 2011. For transitional provisions see note under s 3(1). S 11C formerly read:
SECTION 11C AGREEMENT WITH THE KINGDOM OF BELGIUM
11C(1)
Subject to this Act, on and after the date of entry into force of the Belgian agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law-
(a)
in relation to withholding tax - in respect of dividends or interest derived on or after 1 January in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective; and
(b)
in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective.
11C(2)
(Omitted by No 165 of 1989)
S 11C inserted by No 134 of 1977.
(Repealed by No 45 of 2011)
History
S 11CA repealed by No 45 of 2011, s 3 and Sch 1 item 25, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11CA formerly read:
S 11CA(1) amended by No 13 of 2010, s 3 and Sch 1 item 15, by inserting "first" after "entry into force of the", effective 11 March 2010.
SECTION 11CA FIRST PROTOCOL WITH THE KINGDOM OF BELGIUM
11CA(1)
Subject to this Act, on and after the date of entry into force of the first Belgian protocol, the provisions of the protocol, so far as those provisions affect Australian tax, have the force of law in relation to tax in respect of income of any year of income commencing on or after 1 July in the calendar year immediately following that in which the protocol enters into force.
History
11CA(2)
(Omitted by No 165 of 1989)
S 11CA inserted by No 125 of 1984.
(Repealed by No 45 of 2011)
History
S 11CB repealed by No 45 of 2011, s 3 and Sch 1 item 25, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11CB formerly read:
SECTION 11CB SECOND PROTOCOL WITH THE KINGDOM OF BELGIUM
11CB
Subject to this Act, on and after the date of entry into force of the second Belgian protocol, the provisions of the protocol have the force of law according to their tenor.
S 11CB inserted by No 13 of 2010, s 3 and Sch 1 item 16, effective 11 March 2010.
Subject to this Act, on and after the date of entry into force of the Philippine agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 January in the calendar year in which the agreement enters into force and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year in which the agreement enters into force and in relation to which the agreement remains effective.
History
S 11D amended by No 45 of 2011, s 3 and Sch 1 item 26, by omitting "(1)" from s 11D(1), effective 27 June 2011. For transitional provisions see note under s 3(1). S 11D formerly read:
Former s 11D(3) inserted by No 28 of 1981.
SECTION 11D AGREEMENT WITH THE REPUBLIC OF THE PHILIPPINES
11D(1)
Subject to this Act, on and after the date of entry into force of the Philippine agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law-
(a)
in relation to withholding tax - in respect of dividends or interest derived on or after 1 January in the calendar year in which the agreement enters into force and in relation to which the agreement remains effective; and
(b)
in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year in which the agreement enters into force and in relation to which the agreement remains effective.
11D(2)
(Omitted by No 165 of 1989)
11D(3)
(Omitted by No 165 of 1989)
History
S 11D inserted by No 23 of 1980.
Subject to this Act, the provisions of the Swiss 1980 agreement, so far as those provisions affect Australian tax, continue to have the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 January 1979 and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of the year of income that commenced on 1 July 1979 and of a subsequent year of income in relation to which the agreement remains effective.
History
S 11E amended by No 105 of 2014, s 3 and Sch 1 item 7, by substituting "Subject to this Act, the provisions of the Swiss 1980 agreement, so far as those provisions affect Australian tax, continue to have" for "Subject to this Act, on and after the date of entry into force of the Swiss agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have, and shall be deemed to have had,", effective 24 September 2014.
S 11E amended by No 45 of 2011, s 3 and Sch 1 item 27, by omitting "(1)" from s 11E(1), effective 27 June 2011. For transitional provisions see note under s 3(1). S 11E formerly read:
SECTION 11E AGREEMENT WITH THE SWISS FEDERAL COUNCIL
11E(1)
Subject to this Act, on and after the date of entry into force of the Swiss agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law-
(a)
in relation to withholding tax - in respect of dividends or interest derived on or after 1 January 1979 and in relation to which the agreement remains effective; and
(b)
in relation to tax otherthan withholding tax - in respect of income of the year of income that commenced on 1 July 1979 and of a subsequent year of income in relation to which the agreement remains effective.
11E(2)
(Omitted by No 165 of 1989)
S 11E inserted by No 23 of 1980.
Subject to this Act, on and after the date of entry into force of the Malaysian agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 July 1979 and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income that commenced on or after 1 July 1979 and in relation to which the agreement remains effective.
11F(2)
The Malaysian agreement, as amended by:
(a) the Malaysian protocol (No. 1); and
(b) the Malaysian protocol (No. 2); and
(c) the Malaysian protocol (No. 3);
does not subject to Australian tax any interest, or royalties, paid by a resident of Australia to a resident of Malaysia that, apart from that agreement, would not be subject to Australian tax.
History
S 11F(2) amended by No 45 of 2011, s 3 and Sch 2 items 15 and 16, by inserting "and" at the end of para (b) and inserting para (c), effective 27 June 2011.
S 11F(2) inserted by No 45 of 2011, s 3 and Sch 1 item 28, effective 27 June 2011. For transitional provisions see note under s 3(1).
Former s 11F(2) omitted by No 165 of 1989.
11F(3)
(Omitted by No 165 of 1989)
11F(4)
(Repealed by No 45 of 2011)
History
S 11F(4) repealed by No 45 of 2011, s 3 and Sch 1 item 29, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11F(4) formerly read:
11F(4)
The provisions of the Malaysian agreement shall not have the effect of subjecting to Australian tax interest or royalties paid by a resident of Australia to a resident of Malaysia that, but for that agreement, would not be subject to Australian tax.
11F(5)
(Omitted by No 165 of 1989)
History
S 11F amended by No 57 of 1983 and inserted by No 28 of 1981.
(Repealed by No 45 of 2011)
History
S 11FA(1) repealed by No 45 of 2011, s 3 and Sch 1 item 30, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11FA(1) formerly read:
11FA(1)
Subject to this Act, on and after the date of entry into force of the first Malaysian protocol, the provisions of the protocol, so far as those provisions affect Australian tax, have, and are taken to have had, the force of law according to their tenor.
S 11FA(1) amended by No 129 of 2002.
11FA(2)
Nothing in section 170 of the Income Tax Assessment Act 1936 prevents the amendment of an assessment made before the commencement of this section for the purpose of giving effect to the Malaysian protocol (No. 1).
History
S 11FA(2) amended by No 45 of 2011, s 3 and Sch 1 item 31, by substituting "Malaysian protocol (No. 1)" for "first Malaysian protocol", effective 27 June 2011. For transitional provisions see note under s 3(1).
S 11FA(2) amended by No 129 of 2002.
11FA(3)
Nothing in former Division 19 of Part III of the Income Tax Assessment Act 1936 prevents the amendment of a determination made, or taken to have been made, under that Division before the commencement of this section for the purpose of giving effect to the Malaysian protocol (No. 1).
History
S 11FA(3) amended by No 45 of 2011, s 3 and Sch 1 item 31, by substituting "Malaysian protocol (No. 1)" for "first Malaysian protocol", effective 27 June 2011. For transitional provisions see note under s 3(1).
S 11FA(3) amended by No 143 of 2007, s 3 and Sch 1 item 209, by inserting "former" before "Division 19", applicable in relation to income years, statutory accounting periods and notional accounting periods starting on or after the first 1 July that occurs after 24 September 2007.
S 11FA(3) amended by No 129 of 2002.
History
S 11FA inserted by No 149 of 1999.
(Repealed by No 45 of 2011)
History
S 11FB(1) repealed by No 45 of 2011, s 3 and Sch 1 item 32, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11FB(1) formerly read:
11FB(1)
Subject to this Act, on and after the date of entry into force of the second Malaysian protocol, the provisions of that protocol, so far as those provisions affect Australian tax, have, and are taken to have had, the force of law according to their tenor.
11FB(2)
Nothing in section 170 of the Income Tax Assessment Act 1936 prevents the amendment of an assessment made before the commencement of this section for the purpose of giving effect to the Malaysian protocol (No. 2).
History
S 11FB(2) amended by No 45 of 2011, s 3 and Sch 1 item 33, by substituting "Malaysian protocol (No. 2)" for "second Malaysian protocol", effective 27 June 2011. For transitional provisions see note under s 3(1).
11FB(3)
Nothing in former Division 19 of Part III of the Income Tax Assessment Act 1936 prevents the amendment of a determination made, or taken to have been made, under that Division before the commencement of this section for the purpose of giving effect to the Malaysian protocol (No. 2).
History
S 11FB(3) amended by No 45 of 2011, s 3 and Sch 1 item 33, by substituting "Malaysian protocol (No. 2)" for "second Malaysian protocol", effective 27 June 2011. For transitional provisions see note under s 3(1).
S 11FB(3) amended by No 143 of 2007, s 3 and Sch 1 item 210, by inserting "former" before "Division 19", applicable in relation to income years, statutory accounting periods and notional accounting periods starting on or after the first 1 July that occurs after 24 September 2007.
History
S 11FB inserted by No 129 of 2002.
Subject to this Act, on and after the date of entry into force of the Swedish agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 January in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective.
History
S 11G amended by No 45 of 2011, s 3 and Sch 1 item 34, by omitting "(1)" from s 11G(1), effective 27 June 2011. For transitional provisions see note under s 3(1). S 11G formerly read:
SECTION 11G AGREEMENT WITH SWEDEN
11G(1)
Subject to this Act, on and after the date of entry into force of the Swedish agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law-
(a)
in relation to withholding tax - in respect of dividends or interest derived on or after 1 January in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective; and
(b)
in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective.
11G(2)
(Omitted by No 165 of 1989)
S 11G inserted by No 28 of 1981.
Subject to this Act, on and after the date of entry into force of the Danish agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law- (a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 January in the calendar year immediately following that in which the agreement enters into force and in relation to which theagreement remains effective; and (b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective.
11H(2)
(Omitted by No 165 of 1989)
11H(3)
Where an amount of tax credit is to be treated as assessable income of a taxpayer in accordance with paragraph (7) of Article 10 of the Danish agreement- (a) the amount of the tax credit shall be included in the assessable income of the taxpayer of the year of income in which the dividend to which the tax credit relates is paid; and (b) the amount of the tax credit shall be added to the amount of the dividend to which the tax credit relates and the sum of the two amounts shall be deemed to be one dividend for the purposes of this Act and the Assessment Act.
History
S 11H inserted by No 143 of 1981.
The Indian agreement (as amended by the Indian protocol (No. 1)) does not have the effect of subjecting to Australian tax any payments or credits, whether periodical or not, and however described or computed, to the extent to which they: (a) are made as consideration for the rendering of any services covered by paragraph 12(3)(g) of that agreement (as amended); and (b) are not royalties (within the meaning of the Income Tax Assessment Act 1936); and (c) would, apart from paragraph 12(3)(g) and Article 23 of that agreement (as amended), not be subject to Australian tax.
Note:
This section does not prevent payments or credits from being subjected to Australian tax because of another provision of that agreement. For example, because of Articles 7 and 23 of that agreement.
History
S 11J inserted by No 60 of 2022, s 3 and Sch 1 item 3, applicable in relation to assessments for years of income starting on or after 29 December 2022.
Former s 11J amended by No 165 of 1989 and inserted by No 57 of 1983.
Subject to this Act, on and after the date of entry into force of the Irish agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 July in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective.
History
S 11K amended by No 45 of 2011, s 3 and Sch 1 item 35, by omitting "(1)" from s 11K(1), effective 27 June 2011. For transitional provisions see note under s 3(1). S 11K formerly read:
SECTION 11K AGREEMENT WITH IRELAND
11K(1)
Subject to this Act, on and after the date of entry into force of the Irish agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law-
(a)
in relation to withholding tax - in respect of dividends or interest derived on or after 1 July in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective; and
(b)
in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year immediately following that in which the agreement enters into force and in relation to which the agreement remains effective.
11K(2)
(Omitted by No 165 of 1989)
S 11K inserted by No 57 of 1983.
Subject to this Act, on and after the date of entry into force of the Korean convention, the provisions of the convention, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 January 1982 and in relation to which the convention remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July 1982 and in relation to which the convention remains effective.
History
S 11L amended by No 45 of 2011, s 3 and Sch 1 item 36, by omitting "(1)" from s 11L(1), effective 27 June 2011. For transitional provisions see note under s 3(1). S 11L formerly read:
SECTION 11L CONVENTION WITH THE REPUBLIC OF KOREA
11L(1)
Subject to this Act, on and after the date of entry into force of the Korean convention, the provisions of the convention, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law-
(a)
in relation to withholding tax - in respect of dividends or interest derived on or after 1 January 1982 and in relation to which the convention remains effective; and
(b)
in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July 1982 and in relation to which the convention remains effective.
11L(2)-(4)
(Omitted by No 165 of 1989)
S 11L inserted by No 57 of 1983.
(Repealed by No 45 of 2011)
History
S 11M repealed by No 45 of 2011, s 3 and Sch 1 item 37, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11M formerly read:
SECTION 11M THE 2006 NORWEGIAN CONVENTION
11M
Subject to this Act, on and after the date of entry into force of a provision of the 2006 Norwegian convention, the provision has the force of law according to its tenor.
S 11M substituted by No 136 of 2007, s 3 and Sch 2 item 5, effective 3 September 2007. S 11M formerly read:
SECTION 11M CONVENTION WITH THE KINGDOM OF NORWAY
11M(1)
Subject to this Act, on and after the date of entry into force of the Norwegian convention, the provisions of the convention, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law-
(a)
in relation to withholding tax - in respect of dividends or interest derived on or after 1 July 1982 and in relation to which the convention remains effective; and
(b)
in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July 1982 and in relation to which the convention remains effective.
11M(2)-(3)
(Omitted by No 165 of 1989)
S 11M inserted by No 57 of 1983.
(Repealed by No 45 of 2011)
History
S 11MA repealed by No 45 of 2011, s 3 and Sch 1 item 37, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11MA formerly read:
SECTION 11MA THE 1982 NORWEGIAN CONVENTION
11MA
The provisions of the 1982 Norwegian convention, so far as those provisions affect Australian tax, continue to have the force of law for tax in respect of income in relation to which the convention remains effective.
S 11MA inserted by No 136 of 2007, s 3 and Sch 2 item 5, effective 3 September 2007.
Subject to this Act, on and after the date of entry into force of the Maltese agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 January in the calendar year next following that in which the agreement enters into force and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year next following that in which the agreement enters into force and in relation to which the agreement remains effective.
History
S 11N amended by No 45 of 2011, s 3 and Sch 1 item 38, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11N formerly read:
SECTION 11N AGREEMENT WITH MALTA
11N(1)
Subject to this Act, on and after the date of entry into force of the Maltese agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law-
(a)
in relation to withholding tax - in respect of dividends or interest derived on or after 1 January in the calendar year next following that in which the agreement enters into force and in relation to which the agreement remains effective; and
(b)
in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year next following that in which the agreement enters into force and in relation to which the agreement remains effective.
11N(2)-(5)
(Omitted by No 165 of 1989)
S 11N inserted by No 125 of 1984.
(Repealed by No 45 of 2011)
History
S 11P repealed by No 45 of 2011, s 3 and Sch 1 item 39, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11P formerly read:
SECTION 11P THE 2006 FINNISH AGREEMENT
11P
Subject to this Act, on and after the date of entry into force of a provision of the 2006 Finnish agreement, the provision has the force of law according to its tenor.
S 11P substituted by No 146 of 2007, s 3 and Sch 1 item 7, effective 24 September 2007. S 11P formerly read:
SECTION 11P AGREEMENT WITH FINLAND
11P(1)
Subject to this Act, on and after the date of entry into force of the Finnish agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law-
(a)
in relation to withholding tax - in respect of dividends or interest derived on or after 1 January in the calendar year next following that in which the agreement enters into force and in relation to which the agreement remains effective; and
(b)
in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year next following that in which the agreement enters into force and in relation to which the agreement remains effective.
11P(2)
(Omitted by No 165 of 1989)
S 11P inserted by No 168 of 1985.
(Repealed by No 45 of 2011)
History
S 11PA repealed by No 45 of 2011, s 3 and Sch 1 item 39, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11PA formerly read:
so far as those provisions affect Australian tax, continue to have the force of law for tax in respect of income in relation to which the agreements remain effective.
SECTION 11PA PREVIOUS FINNISH AGREEMENTS ETC
11PA
The provisions of:
(a)
the 1984 Finnish agreement; and
(b)
the 1984 Finnish agreement as amended by the 1997 Finnish protocol;
S 11PA substituted by No 146 of 2007, s 3 and Sch 1 item 7, effective 24 September 2007. S 11PA formerly read:
SECTION 11PA SECOND PROTOCOL WITH FINLAND
11PA
Subject to this Act, on and after the date of entry into force of the second Finnish protocol, the provisions of the protocol, so far asthose provisions affect Australian tax, have the force of law according to their tenor.
S 11PA inserted by No 100 of 2000.
Subject to this Act, on and after the date of entry into force of the Chinese airline profits agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law in relation to tax in respect of income derived on or after 1 July 1984 and in relation to which the agreement remains effective.
History
S 11Q amended by No 45 of 2011, s 3 and Sch 1 item 40, by omitting "(1)" from s 11Q(1), effective 27 June 2011. For transitional provisions see note under s 3(1). S 11Q formerly read:
SECTION 11Q AIRLINE PROFITS AGREEMENT WITH THE PEOPLE'S REPUBLIC OF CHINA
11Q(1)
Subject to this Act, on and after the date of entry into force of the Chinese airline profits agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have, and shall be deemed to have had, the force of law in relation to tax in respect of income derived on or after 1 July 1984 and in relation to which the agreement remains effective.
11Q(2)
(Omitted by No 165 of 1989)
S 11Q inserted by No 46 of 1986.
Subject to this Act, on and after the date of entry into force of the Austrian agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law-
(a) in relation to withholding tax - in respect of dividends or interest derived on or after 1 January in the calendar year next following that in which the agreement enters into force and in relation to which the agreement remains effective; and
(b) in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year next following that in which the agreement enters into force and in relation to which the agreement remains effective.
History
S 11R amended by No 45 of 2011, s 3 and Sch 1 item 41, by omitting "(1)" from s 11R(1), effective 27 June 2011. For transitional provisions see note under s 3(1). S 11R formerly read:
SECTION 11R AGREEMENT WITH THE REPUBLIC OF AUSTRIA
11R(1)
Subject to this Act, on and after the date of entry into force of the Austrian agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law-
(a)
in relation to withholding tax - in respect of dividends or interest derived on or after 1 January in the calendar year next following that in which the agreement enters into force and in relation to which the agreement remains effective; and
(b)
in relation to tax other than withholding tax - in respect of income of any year of income commencing on or after 1 July in the calendar year next following that in which the agreement enters into force and in relation to which the agreement remains effective.
11R(2)
(Omitted by No 165 of 1989)
S 11R inserted by No 112 of 1986.
(Repealed by No 45 of 2011)
History
S 11S(1) repealed by No 45 of 2011, s 3 and Sch 1 item 42, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11S(1) formerly read:
11S(1)
Subject to this Act, on and after the date of entry into force of the Chinese agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law according to their tenor.
11S(2)
For the purposes of the Assessment Act, income, profits or gains derived by a person who is a resident of China for the purposes of the Chinese agreement, being income, profits or gains that under Articles 6 to 8, 10 to 17 and 19 to 22 of the agreement may be taxed in Australia, are taken to be derived from sources in Australia.
11S(3)
The provisions of the Chinese agreement do not have the effect of subjecting to Australian tax any interest or royalties paid by a resident of Australia to a resident of China that, apart from that agreement, would not be subject to Australian tax.
History
S 11S inserted by No 121 of 1990.
(Repealed by No 45 of 2011)
History
S 11T repealed by No 45 of 2011, s 3 and Sch 1 item 43, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11T formerly read:
SECTION 11T AGREEMENT WITH THE INDEPENDENT STATE OF PAPUA NEW GUINEA
11T
Subject to this Act, on and after the date of entry into force of the Papua New Guinea agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law according to their tenor.
S 11T inserted by No 165 of 1989.
(Repealed by No 45 of 2011)
Hide history note
History
S 11U repealed by No 45 of 2011, s 3 and Sch 1 item 43, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11U formerly read:
SECTION 11U AGREEMENT WITH THAILAND
11U
Subject to this Act, on and after the date of entry into force of the Thai agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law according to their tenor.
S 11U inserted by No 165 of 1989.
(Repealed by No 45 of 2011)
History
S 11V repealed by No 45 of 2011, s 3 and Sch 1 item 43, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11V formerly read:
SECTION 11V AGREEMENT WITH SRI LANKA
11V
Subject to this Act, on and after the date of entry into force of the Sri Lankan agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law according to their tenor.
S 11V inserted by No 121 of 1990.
(Repealed by No 45 of 2011)
History
S 11W repealed by No 45 of 2011, s 3 and Sch 1 item 43, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11W formerly read:
SECTION 11W AGREEMENT WITH FIJI
11W
Subject to this Act, on and after the date of entry into force of the Fijian agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law according to their tenor.
S 11W inserted by No 121 of 1990.
(Repealed by No 45 of 2011)
History
S 11X repealed by No 45 of 2011, s 3 and Sch 1 item 43, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11X formerly read:
SECTION 11X AGREEMENT WITH THE REPUBLIC OF HUNGARY
11X
Subject to this Act, on and after the date of entry into force of the Hungarian agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law according to their tenor.
S 11X inserted by No 96 of 1991.
(Repealed by No 45 of 2011)
History
S 11Y repealed by No 45 of 2011, s 3 and Sch 1 item 43, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11Y formerly read:
SECTION 11Y AGREEMENT WITH KIRIBATI
11Y
Subject to this Act, on and after the date of entry into force of the Kiribati agreement, the provisions of the agreement, as far as those provisions affect Australian tax, have the force of law according to their tenor.
S 11Y inserted by No 96 of 1991.
(Repealed by No 45 of 2011)
History
S 11Z repealed by No 45 of 2011, s 3 and Sch 1 item 43, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11Z formerly read:
SECTION 11Z AGREEMENT WITH THE REPUBLIC OF INDIA
11Z
Subject to this Act, on and after the date of entry into force of the Indian agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law according to their tenor.
S 11Z inserted by No 214 of 1991.
The provisions of the Polish agreement do not have the effect of subjecting to Australian tax any interest or royalties paid by a resident of Australia to a resident of Poland that, apart from that agreement, would not be subject to Australian tax.
History
S 11ZA amended by No 45 of 2011, s 3 and Sch 1 items 44 and 45, by repealing s 11ZA(1) and omitting "(2)" from s 11ZA(2), effective 27 June 2011. For transitional provisions see note under s 3(1). S 11ZA formerly read:
SECTION 11ZA AGREEMENT WITH THE REPUBLIC OF POLAND
11ZA(1)
Subject to this Act, on and after the date of entry into force of the Polish agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law according to their tenor.
11ZA(2)
The provisions of the Polish agreement do not have the effect of subjecting to Australian tax any interest or royalties paid by a resident of Australia to a resident of Poland that, apart from that agreement, would not be subject to Australian tax.
S 11ZA inserted by No 214 of 1991.
(Repealed by No 45 of 2011)
History
S 11ZB repealed by No 45 of 2011, s 3 and Sch 1 item 46, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11ZB formerly read:
SECTION 11ZB AGREEMENT WITH THE REPUBLIC OF INDONESIA
11ZB
Subject to this Act, on and after the date of entry into force of the Indonesian agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law according to their tenor.
S 11ZB inserted by No 139 of 1992.
(Repealed by No 45 of 2011)
History
S 11ZC repealed by No 45 of 2011, s 3 and Sch 1 item 46, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11ZC formerly read:
SECTION 11ZC AGREEMENT WITH THE SOCIALIST REPUBLIC OF VIETNAM
11ZC
Subject to this Act, on and after the date of entry into force of the Vietnamese agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law according to their tenor.
S 11ZC inserted by No 139 of 1992.
The Commissioner may amend an assessment made before the date of entry into force of the Vietnamese notes (No. 1) for the purpose of giving effect to those notes.
History
S 11ZCA amended by No 45 of 2011, s 3 and Sch 1 items 47 to 49, by repealing s 11ZCA(1), omitting "(2)" from s 11ZCA(2) and substituting "Vietnamese notes (No. 1) for the purpose of giving effect to those notes" for "Vietnamese notes for the purpose of giving effect to subsection (1)" in s 11ZCA(2), effective 27 June 2011. For transitional provisions see note under s 3(1). S 11ZCA formerly read:
SECTION 11ZCA EXCHANGE OF NOTES BETWEEN AUSTRALIA AND THE SOCIALIST REPUBLIC OF VIETNAM
11ZCA(1)
Subject to this Act, on or after the date of entry into force of the Vietnamese notes, the provisions of the notes, so far as those provisions affect Australian tax, have the force of law according to their tenor.
11ZCA(2)
The Commissioner may amend an assessment made before the date of entry into force of the Vietnamese notes for the purpose of giving effect to subsection (1).
S 11ZCA inserted by No 80 of 1997.
(Repealed by No 45 of 2011)
History
S 11ZD repealed by No 45 of 2011, s 3 and Sch 1 item 50, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11ZD formerly read:
SECTION 11ZD AGREEMENT WITH THE KINGDOM OF SPAIN
11ZD
Subject to this Act, on and after the date of entry into force of the Spanish agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law according to their tenor.
S 11ZD inserted by No 139 of 1992.
(Repealed by No 45 of 2011)
History
S 11ZE repealed by No 45 of 2011, s 3 and Sch 1 item 50, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11ZE formerly read:
SECTION 11ZE AGREEMENT WITH THE CZECH REPUBLIC
11ZE
Subject to this Act, on and after the date of entry into force of the Czech agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law according to their tenor.
S 11ZE inserted by No 127 of 1995.
(Repealed by No 45 of 2011)
History
S 11ZF(1) repealed by No 45 of 2011, s 3 and Sch 1 item 51, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11ZF(1) formerly read:
11ZF(1)
Subject to this Act, on and after the date of entry into effect of the Taipei agreement, the provisions of the agreement, so far as they affect Australian tax, have, and are taken to have had, the force of law according to their tenor.
11ZF(2)
For the purposes of the Assessment Act, if:
(a) a person derives income, profits or gains; and
(b) for the purposes of the Taipei agreement, the person is a resident of the foreign territory; and
(c) under any of Articles 6 to 8, 10 to 17 and 19 to 21 of the agreement, the income, profits or gains may be taxed in the Australian territory;
the income, profits or gains are taken to be derived from sources in the Australian territory.
11ZF(3) [Income deemed derived from the foreign territory]
For the purposes of the Assessment Act and Article 22 of the Taipei agreement, if:
(a) a person derives income, profits or gains; and
(b) for the purposes of the agreement, the person is a resident of the Australian territory; and
(c) under any of Articles 6 to 8, 10 to 17 and 19 to 21 of the agreement, the income, profits or gains may be taxed in the foreign territory;
the income, profits or gains are taken to have been derived from sources in the foreign territory.
11ZF(4)The provisions of the Taipei agreement do not have the effect of subjecting to Australian tax any interest or royalties paid by a resident of the Australian territory to a resident of the foreign territory that, apart from the agreement, would not be subject to Australian tax.
11ZF(5)
Section 170 of the Income Tax Assessment Act 1936 does not prevent the amendment of an assessment made before the commencement of this section for the purpose of giving effect to the Taipei agreement.
History
S 11ZF(5) amended by No 45 of 2011, s 3 and Sch 1 item 52, by substituting "Income Tax Assessment Act 1936" for "Assessment Act", effective 27 June 2011. For transitional provisions see note under s 3(1).
11ZF(6)
If:
(a) an exchange of letters takes place for the purposes of paragraph 2 of the Annex mentioned in paragraph (b) of the definition of Taipei agreement in subsection 3AAA(1); and
(b) as a result of the exchange, income, profits or gains derived by an organisation before the exchange become taxable under paragraph 2 of the Annex solely in the Australian territory or solely in the foreign territory; and
(c) before the exchange and whether before or after the commencement of this section, an assessment was made in which the income, profits or gains were not taxed in that way;
section 170 of the Income Tax Assessment Act 1936 does not prevent the amendment of the assessment for the purpose of taxing the income, profits or gains in that way.
History
S 11ZF(6) amended by No 45 of 2011, s 3 and Sch 1 items 53 and 54, by substituting "subsection 3AAA(1)" for "subsection 3(1)" in para (a) and substituting "Income Tax Assessment Act 1936" for "Assessment Act", effective 27 June 2011. For transitional provisions see note under s 3(1).
11ZF(7)
In this section:
Australian territory
means the territory mentioned in subparagraph 1(a) of Article 2 of the Taipei agreement.
foreign territory
means the territory mentioned in subparagraph 1(b) of Article 2 of the Taipei agreement.
History
S 11ZF inserted by No 39 of 1996.
(Repealed by No 45 of 2011)
History
S 11ZG repealed by No 45 of 2011, s 3 and Sch 1 item 55, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11ZG formerly read:
SECTION 11ZG AGREEMENT WITH THE REPUBLIC OF SOUTH AFRICA
11ZG
Subject to this Act, on and after the date of entry into force of the South African agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law according to their tenor.
S 11ZG inserted by No 149 of 1999.
(Repealed by No 45 of 2011)
History
S 11ZGA repealed by No 45 of 2011, s 3 and Sch 1 item 55, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11ZGA formerly read:
SECTION 11ZGA PROTOCOL WITH THE REPUBLIC OF SOUTH AFRICA
11ZGA
Subject to this Act, on and after the date of entry into force of the South African protocol, the provisions of the protocol have the force of law according to their tenor.
S 11ZGA inserted by No 111 of 2008, s 3 and Sch 1 item 3, effective 31 October 2008.
(Repealed by No 45 of 2011)
History
S 11ZH repealed by No 45 of 2011, s 3 and Sch 1 item 55, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11ZH formerly read:
SECTION 11ZH AGREEMENT WITH THE SLOVAK REPUBLIC
11ZH
Subject to this Act, on and after the date of entry into force of the Slovak agreement, the provisions of the agreement so far as those provisions affect Australian tax, have the force of law according to their tenor.
S 11ZH inserted by No 149 of 1999.
Nothing in section 170 of the Income Tax Assessment Act 1936 prevents the amendment of an assessment made before the commencement of this section for the purpose of giving effect to the Argentine agreement.
History
S 11ZI amended by No 45 of 2011, s 3 and Sch 1 items 56 and 57, by repealing s 11ZI(1) and omitting "(2)" from s 11ZI(2), effective 27 June 2011. For transitional provisions see note under s 3(1). S 11ZI formerly read:
SECTION 11ZI ARGENTINE AGREEMENT
11ZI(1)
Subject to this Act, on and after the date of entry into force of the Argentine agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have, and are taken to have had, the force of law according to their tenor.
11ZI(2)
Nothing in section 170 of the Income Tax Assessment Act 1936 prevents the amendment of an assessment made before the commencement of this section for the purpose of giving effect to the Argentine agreement.
S 11ZI inserted by No 149 of 1999.
(Repealed by No 45 of 2011)
History
S 11ZJ repealed by No 45 of 2011, s 3 and Sch 1 item 58, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11ZJ formerly read:
SECTION 11ZJ AGREEMENT WITH ROMANIA
11ZJ
Subject to this Act, on and after the date of entry into force of the Romanian agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law according to their tenor.
S 11ZJ inserted by No 100 of 2000.
(Repealed by No 45 of 2011)
History
S 11ZK repealed by No 45 of 2011, s 3 and Sch 1 item 58, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11ZK formerly read:
SECTION 11ZK AGREEMENT WITH RUSSIA
11ZK
Subject to this Act, on or after the date of entry into force of the Russian agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law according to their tenor.
S 11ZK inserted by No 59 of 2002.
(Repealed by No 45 of 2011)
History
S 11ZL repealed by No 45 of 2011, s 3 and Sch 1 item 58, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11ZL formerly read:
SECTION 11ZL AGREEMENT WITH MEXICO
11ZL
Subject to this Act, on and after the date of entry into force of the Mexican agreement, the provisions of the agreement, so far as those provisions affect Australian tax, have the force of law according to their tenor.
S 11ZL inserted by No 123 of 2003.
(Repealed by No 45 of 2011)
History
S 11ZM repealed by No 45 of 2011, s 3 and Sch 1 item 58, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11ZM formerly read:
SECTION 11ZM AGREEMENT WITH THE BRITISH VIRGIN ISLANDS
11ZM
Subject to this Act, on and after the date of entry into force of a provision of the British Virgin Islands agreement, the provision has the force of law according to its tenor.
S 11ZM inserted by No 105 of 2009, s 3 and Sch 1 item 3, effective 8 October 2009.
(Repealed by No 45 of 2011)
History
S 11ZN repealed by No 45 of 2011, s 3 and Sch 1 item 58, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11ZN formerly read:
SECTION 11ZN AGREEMENT WITH THE ISLE OF MAN
11ZN
Subject to this Act, on and after the date of entry into force of a provision of the Isle of Man agreement, the provision has the force of law according to its tenor.
S 11ZN inserted by No 105 of 2009, s 3 and Sch 1 item 3, effective 8 October 2009.
(Repealed by No 45 of 2011)
History
S 11ZO repealed by No 45 of 2011, s 3 and Sch 1 item 58, effective 27 June 2011. For transitional provisions see note under s 3(1). S 11ZO formerly read:
SECTION 11ZO AGREEMENT WITH JERSEY
11ZO
Subject to this Act, on and after the date of entry into force of a provision of the Jersey agreement, the provision has the force of law according to its tenor.
S 11ZO inserted by No 13 of 2010, s 3 and Sch 1 item 17, effective 11 March 2010.
(Repealed by No 51 of 1986)
History
Former s 12 amended by No 168 of 1985, No 125 of 1984, No 57 of 1983, No 143 and No 28 of 1981, No 127 and No 23 of 1980, No 134 of 1977, No 52 of 1976, No 129 of 1974 and No 11 of 1973.
(Repealed by No 51 of 1986)
History
Former s 13 amended by No 23 of 1980 and No 129 of 1974.
(Repealed by No 51 of 1986) 15 (Repealed) SECTION 15 ASCERTAINMENT OF AUSTRALIAN TAX
(Repealed by No 51 of 1986)
History
Former s 15 amended by No 173 of 1985, No 51 of 1983, No 154 of 1981, No 87 of 1978, No 55 of 1976, No 119 of 1975, No 129 of 1974 and No 48 of 1972.
This section applies in relation to each relevant part of a taxpayer's income of the year of income that consists of income in respect of which a provision of an agreement limits the amount of Australian tax payable.
16(2) [Calculation of rebate]The taxpayer is entitled, in respect of each relevant part of the taxpayer's income of theyear of income to which this section applies, to a rebate of the amount (if any) by which the amount ascertained in accordance with the last preceding section as the amount of Australian tax payable in respect of that part exceeds the limit applicable under the provisions of the agreement in relation to that part.
History
S 16(2) amended by No 73 of 2008, s 3 and Sch 4 item 360, by substituting "the taxpayer's" for "his", effective 4 July 2008.
The rebate to which a taxpayer is entitled under this section in respect of a relevant part of the taxpayer's income shall be allowed in the taxpayer's assessment in respect of income of the year of income in the assessable income of which that part is included.
History
S 16(3) amended by No 73 of 2008, s 3 and Sch 4 item 361, by substituting "the taxpayer's" for "his" (wherever occurring), effective 4 July 2008.
A rebate, or the sum of the rebates, a taxpayer is entitled to under subsection (2), in respect of income of a year of income, must not exceed the amount of Australian tax payable in respect of the taxpayer's taxable income of that year after all other rebates of, and deductions from, that tax have been taken into account.
History
S 16(4) substituted for s 16(4) and (5) by No 88 of 2009, s 3 and Sch 5 item 342, effective 18 September 2009. S 16(4) formerly read:
16(4)
Where the taxpayer is liable to pay additional tax under section 104 of the Assessment Act in relation to the year of income referred to in subsection (3), so much of the rebate as is not allowed in the assessment referred to in that subsection shall be allowed in the assessment of the additional tax.
S 16(4) amended by No 129 of 1974.
(Repealed by No 88 of 2009)
History
S 16(4) substituted for s 16(4) and (5) by No 88 of 2009, s 3 and Sch 5 item 342, effective 18 September 2009. S 16(5) formerlyread:
16(5)
A rebate, or the sum of the rebates, to which, under subsection (2), a taxpayer is entitled in respect of income of a year of income shall not exceed the sum of:
(a) the amount of Australian tax payable in respect of the taxpayer's taxable income of that year of income after all other rebates of, and deductions from, that tax have been taken into account; and
(b) the amount, if any, of additional tax payable by the taxpayer under section 104 of the Assessment Act in relation to that year of income.
S 16(5) amended by No 73 of 2008, s 3 and Sch 4 items 362 and 363, by substituting "the taxpayer's" for "his" in para (a) and substituting "the taxpayer" for "him" in para (b), effective 4 July 2008.
S 16(5) amended by No 129 of 1974.
17 (Repealed) SECTION 17 REBATES OF EXCESS TAX ON DIVIDENDS
(Repealed by No 3 of 1968) SECTION 17A WITHHOLDING TAX 17A(1)
Where a provision of an agreement limits the amount of Australian tax payable in respect of a dividend or a royalty, being a dividend or a royalty in respect of which withholding tax is payable, and the amount of that withholding tax exceeds the limit specified in the agreement, the liability of the taxpayer for the withholding tax shall be reduced by an amount equal to the amount of the excess.
History
S 17A(1) amended by No 224 of 1992.
17A(2)
Where the liability of a taxpayer for withholding tax payable in respect of a unit trust dividend would have been reduced in pursuance of subsection (1) if that unit trust dividend had been a dividend paid to the taxpayer by a company that is a resident, that liability shall be reduced by an amount equal to the amount by which the liability would have been reduced if the unit trust dividend had been a dividend paid to the taxpayer by a company that is a resident.
History
S 17A(2) inserted by No 154 of 1981.
17A(3)
In subsection (2):
unit trust dividend
means a unit trust dividend within the meaning of Division 6C of Part III of the Income Tax Assessment Act 1936.
History
Definition of "unit trust dividend" amended by No 53 of 2016, s 3 and Sch 5 item 72, by omitting "6B or" before "6C", applicable to assessments for income years starting on or after 1 July 2016. For transitional provision, see note under definition of "prescribed trust estate" in s 3(1).
Definition of "unit trust dividend" amended by No 45 of 2011, s 3 and Sch 1 item 59, by substituting "Income Tax Assessment Act 1936" for "Assessment Act", effective 27 June 2011. For transitional provisions see note under s 3(1).
History
S 17A(3) substituted by No 173 of 1985 and inserted by No 154 of 1981.
17A(4)
If:
(a) a provision ( basic royalty provision ) of an agreement is covered by either of the following subparagraphs:
(i) paragraph 1 or 2 of Article 12 of the Chinese agreement;
(ii) a corresponding provision of another agreement; and
(b) another provision of the agreement expressly excludes particular royalties ( excluded royalties ) from the scope of the basic royalty provision;
section 128B of the Income Tax Assessment Act 1936 (which deals with liability for withholding tax) does not apply to the excluded royalties.
History
S 17A(4) amended by No 45 of 2011, s 3 and Sch 1 item 60, by substituting "Income Tax Assessment Act 1936" for "Assessment Act", effective 27 June 2011. For transitional provisions see note under s 3(1).
S 17A(4) inserted by No 224 of 1992.
17A(5)
Section 128B of the Income Tax Assessment Act 1936 (which deals with liability for withholding tax) does not apply to the payment of a royalty as defined in subsection 6(1) of that Act if:
(a) the royalty is paid to a person who is a resident of a Contracting State or territory (other than Australia) for the purposes of an agreement; and
(b) the agreement does not treat the amount paid as a royalty.
History
S 17A(5) amended by No 45 of 2011, s 3 and Sch 1 item 60, by substituting "Income Tax Assessment Act 1936" for "Assessment Act", effective 27 June 2011. For transitional provisions see note under s 3(1).
S 17A(5) inserted by No 59 of 2002.
17B (Repealed) SECTION 17B INTEREST PAID BY A COMPANY TO A PERSON RESIDENT IN THE UNITED KINGDOM
(Repealed by No 123 of 2003) SECTION 18 SOURCE OF DIVIDENDS 18(1)
Where a company is not a resident of Australia but, for the purposes of a law of a country with which, or with the government of which, an agreement has been made (being a law which imposes foreign tax), is resident in that other country, a dividend paid by the company shall, for the purposes of the agreement, be deemed to be derived from a source in that country.
History
S 18(1) amended by No 125 of 1984.
18(2)
Subsection (1) does not limit the operation of a provision of an agreement by virtue of which a dividend is deemed to be derived from a source outside Australia.
19 (Repealed) SECTION 19 CERTAIN DIVIDENDS PAID TO UNITED KINGDOM RESIDENTS
(Repealed by No 3 of 1968) 19A (Repealed) SECTION 19A CERTAIN FOREIGN CONTRACTORS DEEMED NOT TO BE TRADING THROUGH PERMANENT ESTABLISHMENTS IN AUSTRALIA
(Repealed by No 57 of 1983) SECTION 20 COLLECTION OF TAX DUE TO THE UNITED STATES OF AMERICA 20(1)
The purpose of this section is to enable the Government of Australia to give effect to its obligation under paragraph (5) of Article 25 of the United States convention (as amended) and accordingly the amounts of United States tax to which this section applies are amounts of United States tax the collection of which is necessary in order to ensure that the benefit of exemptions from United States tax, or of reductions in rates of United States tax, provided for by the convention is not received by a person not entitled to that benefit.
History
S 20(1) amended by No 45 of 2011, s 3 and Sch 1 item 61, by substituting "United States convention (as amended)" for "United States convention", effective 27 June 2011. For transitional provisions see note under s 3(1).
S 20(1) amended by No 57 of 1983 and No 52 of 1976.
20(2)
Where a person is liable to pay an amount of United States tax to which this section applies, there is payable by that person to the Commissioner as a debt due to the Queen on behalf of Australia an amount equivalent to that amount, and the amount so payable may be sued for and recovered in any court of competent jurisdiction by the Commissioner, a Second Commissioner or a Deputy Commissioner suing in his or her official name.
History
S 20(2) amended by No 73 of 2008, s 3 and Sch 4 item 364, by inserting "or her" after "his", effective 4 July 2008.
S 20(2) amended by No 52 of 1976.
20(3)
An amount payable to the Commissioner under the last preceding subsection may be collected by the Commissioner under section 218 of the Assessment Act and, for that purpose, a reference in that section to a taxpayer shall be read as a reference to the person by whom that amount is payable and a reference to an amount due by a taxpayer in respect of tax shall be read as a reference to the amount so payable.
History
S 20(3) amended by No 129 of 1974.
20(4)
The Commissioner, a Second Commissioner or a Deputy Commissioner may, by writing under his or her hand, certify-
(a) that, on a date specified in the certificate, a person specified in the certificate was liable to pay an amount of United States tax;
(b) that that amount was an amount of United States tax to which this section applies; and
(c) that an amount specified in the certificate is an amount equivalent to the amount of United States tax;
and such a certificate is, in all courts and for all purposes, prima facie evidence of the matters stated in the certificate and that the person specified in the certificate has, during the period from the date specified in the certificate until the date of the certificate, continued to be liable to pay the amount of United States tax.
History
S 20(4) amended by No 61 of 2016, s 3 and Sch 3 item 28, by substituting "prima facie evidence" for "evidence", effective 21 October 2016.
S 20(4) amended by No 73 of 2008, s 3 and Sch 4 item 365, by inserting "or her" after "his", effective 4 July 2008.
20(5)
The Commissioner shall pay to the Government of the United States of America an amount equal to any amount paid or recovered by virtue of this section.
History
S 20(5) substituted by No 123 of 1984.
20(6)
In this section:
United States convention (as amended)
means the United States convention as amended by the United States protocol (No. 1).
History
Definition of "United States convention (as amended)" inserted by No 45 of 2011, s 3 and Sch 1 item 62, effective 27 June 2011. For transitional provisions see note under s 3(1).
United States tax
has the same meaning as in the United States convention (as amended).
History
Definition of "United States tax" amended by No 45 of 2011, s 3 and Sch 1 item 63, by substituting "United States convention (as amended)" for "United States convention", effective 27 June 2011. For transitional provisions see note under s 3(1).
SECTION 21 21 REGULATIONS
The power to make regulations conferred by section 266 of the Income Tax Assessment Act 1936 shall be deemed to extend to the making of regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act.
History
S 21 amended by No 45 of 2011, s 3 and Sch 1 item 64, by substituting "Income Tax Assessment Act 1936" for "Assessment Act", effective 27 June 2011. For transitional provisions see note under s 3(1).
S 21 amended by No 129 of 1974.
Nothing in this Act affects assessments in respect of income, or the ascertainment of credits against tax on income, of a year of income before the year of income that commenced on 1 July 1953.
History
S 22 amended by No 52 of 1976.
The Commissioner or an officer authorised by the Commissioner may use the information gathering provisions for the purpose of gathering information to be exchanged in accordance with the Commissioner's obligations under an international agreement.
23(2)
(Repealed by No 145 of 2010)
History
S 23(2) repealed by No 145 of 2010, s 3 and Sch 2 item 57, effective 17 December 2010. S 23(2) formerly read:
23(2)
Making a record of, and exchanging, information in accordance with the Commissioner's obligations under an international agreement is not a breach of a provision of a taxation law that prohibits the Commissioner or an officer from making a record of, or disclosing, information.Example:
An example of such a provision is section 3C of the Taxation Administration Act 1953.
23(3)
Subsection (1) has effect whether or not the information relates to Australian tax.
History
S 23(3) amended by No 145 of 2010, s 3 and Sch 2 item 58, by substituting "Subsection (1) has" for "Subsections (1) and (2) have", effective 17 December 2010.
23(4)
In this section:
information gathering provision
means a provision of a taxation law that allows the Commissioner:
(a) to access land, premises, documents, information, goods or other property; or
(b) to require or direct a person to provide information; or
(c) to require or direct a person to appear before the Commissioner or an officer and give evidence or produce documents.
international agreement
means:
(a) an agreement given the force of law under this Act; or
(b) some other agreement that allows for the exchange of information on tax matters between Australia and:
(i) a foreign country or a constituent part of a foreign country; or
(ii) an overseas territory.
taxation law
has the same meaning as in the Income Tax Assessment Act 1997.
History
S 23 inserted by No 100 of 2006, s 3 and Sch 2 item 1, applicable to requests for the exchange of information made after 14 September 2006.
Application
24(1)
This section applies if:
(a) Australia has an agreement with one of the following (a treaty partner ):
(i) a foreign country or a constituent part of a foreign country;
(ii) an overseas territory; and
(b) the treaty partner taxes profits, or purports to tax profits, in accordance with, or consistent with the principles of:
(i) if the treaty partner is the United Kingdom - Article 9 of the United Kingdom convention; or
(ii) otherwise - a corresponding provision of another agreement.
Note:
Article 9 of the United Kingdom convention deals with profits of associated enterprises.
History
S 24(1) amended by No 64 of 2016, s 3 and Sch 1 item 9, by substituting the note, effective 20 October 2016. The note formerly read:
Note:
Article 9 of the United Kingdom Convention deals with associated enterprises.
S 24(1) amended by No 45 of 2011, s 3 and Sch 1 items 65 and 66, by omitting "2003" from para (b)(i) and from the note at the end, effective 27 June 2011. For transitional provisions see note under s 3(1).
Object
24(2)
The object of this section is to prevent double taxation of the profits, to the extent that the Commissioner considers the taxation of the profits by the treaty partner to be in accordance with the agreement.
Adjustment of taxable income or tax loss
24(3)
The Commissioner may determine the amount of a taxpayer's taxable income or tax loss of a year of income to be an amount that is appropriate having regard to the object of this section.
Note:
The Commissioner may amend an assessment at any time to give effect to this section: see subsection 170(11) of the Income Tax Assessment Act 1936.
History
S 24 inserted by No 143 of 2007, s 3 and Sch 1 item 211, applicable in relation to income years, statutory accounting periods and notional accounting periods starting on or after the first 1 July that occurs after 24 September 2007. No 143 of 2007, s 3 and Sch 1 item 224 also contains the following application rule, effective 24 September 2007:
as if the repeal had not happened.
224 Application rule for credits arising under the
International Tax Agreements Act 1953
224(1)
Despite the repeal of Division 19 of Part III of the Income Tax Assessment Act 1936, that Division continues to apply, after the commencement of this item, in relation to:
(a)
a determination made by a person under the Division before the commencement of this item; or
(b)
a credit to which the Division applied before the commencement of this item;
224(2)
The Commissioner may make determinations under that Division as it so continues to apply.
224(3)
Section 24 of the International Tax Agreements Act 1953, as inserted, applies from the commencement of this item in relation to any income year.
History
Sch 1 renumbered from Sch 41 by No 45 of 2011, s 3 and Sch 1 item 68, effective 27 June 2011. For transitional provisions see note under s 3(1).
Sch 1 (formerly Sch 41) inserted by No 39 of 1996.
This Agreement shall apply to persons who are residents of one or both of the territories. ARTICLE 2 Taxes covered 1.
The existing taxes to which this Agreement shall apply are:
(a) in the territory in which the taxation law administered by the Australian Taxation Office is applied:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under that law;
(b) in the territory in which the taxation law administered by the Department of Taxation, Ministry of Finance, Taipei is applied:
the profit seeking enterprise income tax and the individual consolidated income tax, imposed under that law.
2.
This Agreement shall apply also to any identical or substantially similar taxes on income, profits or gains which are imposed after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities will notify each other as soon as practicable of any substantial changes which have been made in the taxation laws of their respective territories.
ARTICLE 3 General definitions 1.
In this Agreement, unless the context otherwise requires:
(a) the term "territory" means the territory referred to in subparagraph 1(a) or 1(b) of Article 2, as the case requires;
(b) the term "person" includes an individual, a company and any other body of persons;
(c) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(d) the terms "enterprise of a territory" and "enterprise of the other territory" mean respectively an enterprise carried on by a resident of a territory or an enterprise carried on by a resident of the other territory, as the context requires;
(e) the term "tax" means tax imposed under the law of a territory, being a tax to which this Agreement applies by virtue of Article 2, but does not include any penalty or interest imposed under that law;
(f) the term "competent authority" means, in the case of the territory in which the taxation law administered by the Australian Taxation Office is applied, the Commissioner of Taxation or an authorised representative of the Commissioner and, in the case of the territory in which the taxation law administered by the Department of Taxation, Ministry of Finance, Taipei is applied, the Director-General of the Department of Taxation or an authorised representative of the Director-General.
2.
As regards the application of this Agreement at any time in a territory, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has at that time under the law of that territory concerning the taxes to which this Agreement applies, any meaning under the applicable tax law of that territory prevailing over a meaning given to the term under other laws of that territory.
ARTICLE 4 Residence 1.
For the purposes of this Agreement, a person is a resident of a territory if the person is a resident of that territory for the purposes of its tax.
2.
A person is not a resident of the territory in which the taxation law administered by the Australian Taxation Office is applied for the purposes of this Agreement if the person is liable to tax in that territory in respect only of income from sources in that territory.
3.
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both territories, then the status of the person shall be determined in accordance with the following rules:
(a) the person shall be deemed to be a resident solely of the territory in which a permanent home is available to the person;
(b) if a permanent home is available to the person in both territories, or in neither of them, the person shall be deemed to be a resident solely of the territory in which the person has an habitual abode;
(c) if the person has an habitual abode in both territories or in neither of them, the person shall be deemed to be a resident solely of the territory with which the person's economic and personal relations are closer.
4.
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both territories, then it shall be deemed to be a resident solely of the territory in which its place of incorporation is situated.
ARTICLE 5 Permanent establishment 1.
For the purposes of this Agreement, the term "permanent establishment", in relation to an enterprise, means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
2.
The term "permanent establishment" includes especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property;
(h) a building site or construction, installation or assembly project which exists for more than 6 months; and
(i) the furnishing of services, including consultancy services in a territory by an enterprise of the other territory through employees or other personnel engaged by the enterprise for such purpose, but only where those activities (for the same or a connected project) within the first-mentioned territory continue for a period or periods aggregating more than 120 days within any twelve month period.
3.
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; or
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; or
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; or
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or of collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
4.
An enterprise shall be deemed to have a permanent establishment in a territory and to carry on business through that permanent establishment if:
(a) it carries on supervisory activities in that territory for more than 6 months in connection with a building site, or a construction, installation or assembly project, which is being undertaken in that territory; or
(b) substantial equipment is being used in that territory by, for or under contract with, the enterprise where that use continues for more than 3 months.
5.
A person acting in a territory on behalf of an enterprise of the other territory - other than an agent of an independent status to whom paragraph 6 applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned territory if:
(a) the person has, and habitually exercises in that territory, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting, the person manufactures or processes in that territory for the enterprise goods or merchandise belonging to the enterprise.
6.
An enterprise of a territory shall not be deemed to have a permanent establishment in the other territory merely because it carries on business in that other territory through a person who is a broker, general commission agent or any other agent of an independent status and is acting in the ordinary course of the person's business as such a broker or agent.
7.
The fact that a company which is a resident of a territory controls or is controlled by a company which is a resident of the other territory, or which carries on business in that other territory (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
8.
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph 5 of Article 11 and paragraph 5 of Article 12 whether an enterprise, not being an enterprise of either territory, has a permanent establishment in a territory.
ARTICLE 6 Income from Real property 1.
Income from real property may be taxed in the territory in which the real property is situated.
2.
In this Article, the term "real property":
(a) in the case of the territory in which the taxation law administered by the Australian Taxation Office is applied, has the meaning it has under the law of that territory, and includes:
(i) a lease of land and any other interest in or over land, whether improved or not; and
(ii) a right to receive variable or fixed payments as consideration for the exploitation of or the right to explore for or exploit, or in respect of the proceeds from the exploitation of, mineral deposits, oil or gas wells, quarries or other places of extraction or exploitation of natural resources; and
(b) in the case of the territory in which the taxation law administered by the Department of Taxation, Ministry of Finance, Taipei is applied, has the meaning it has under the law of that territory, and includes:
(i) property accessory to immovable property, livestock and equipment used in agriculture and forestry;
(ii) rights to which the provisions of the general law respecting landed property apply; and
(iii) usufruct of immovable property and rights to variable or fixed payments as consideration for the exploitation of or the right to explore for or exploit, or in respect of the exploitation of, mineral deposits, sources and other natural resources; but
(c) shall not include ships, boats and aircraft.
3.
Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
4.
The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of real property.
5.
The provisions of paragraphs 1 and 4 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.
ARTICLE 7 Business profits 1.
The profits of an enterprise of a territory shall be taxable only in that territory unless the enterprise carries on business in the other territory through a permanent establishment situated in that other territory. If the enterprise carries on business in that manner, the profits of the enterprise may be taxed in the other territory but only so much of them as is attributable to that permanent establishment.
2.
Subject to the provisions of paragraph 3, where an enterprise of a territory carries on business in the other territory through a permanent establishment situated in that other territory, there shall be attributed to that permanent establishment in each territory the profits which that permanent establishment might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
3.
In determining the profits of a permanent establishment, there shall be allowed as deductions expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the territory in which the permanent establishment is situated or elsewhere.
4.
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5.
Nothing in this Article shall affect the application of any law of a territory relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that territory is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
6.
Where profits include items of income or gains which are dealt with separately in other Articles of this Agreement, then the provisions of thoseArticles shall not be affected by the provisions of this Article.
7.
Nothing in this Article shall affect the operation of any law of a territory relating to tax imposed on profits from insurance with non-residents provided that if the relevant law in force in either territory at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the parties to this Agreement shall consult each other with a view to facilitating any amendment of this paragraph as may be appropriate.
8.
Where:
(a) a resident of a territory is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other territory by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other territory,
the enterprise carried on by the trustee shall be deemed to be a business carried on in the other territory by that resident through a permanent establishment situated in that other territory and that share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Ships and aircraft 1.
Profits derived by an enterprise of a territory from the operation of ships or aircraft shall be taxable only in that territory.
2.
Notwithstanding the provisions of paragraph 1, such profits shall be taxed in the other territory to the extent that they are profits derived directly or indirectly from ship or aircraft operations confined solely to places in that other territory.
3.
The profits to which the provisions of paragraphs 1 and 2 apply shall include profits from:
(a) the lease of ships or aircraft on a full time, voyage or bareboat basis, and of containers and related equipment, which is merely incidental to the international operation of ships or aircraft by the lessor, provided that the leased ships or aircraft, or the containers and related equipment, are used in international operations by the lessee; and
(b) the operation of ships or aircraft derived through participation in a pool, a joint business or an international operating agency.
4.
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise which are shipped in a territory and discharged at a place in that territory shall be treated as profits from ship or aircraft operations confined solely to places in that territory.
ARTICLE 9 Associated enterprises 1.
Where
(a) an enterprise of a territory participates directly or indirectly in the management, control or capital of an enterprise of the other territory; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a territory and an enterprise of the other territory,
and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2.
Nothing in this Article shall affect the application of any law of a territory relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that territory is inadequate to determine the profits to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
3.
Where profits on which an enterprise of a territory has been charged to tax in that territory are also included, by virtue of the provisions of paragraph 1 or 2, in the profits of an enterprise of the other territory and charged to tax in that other territory, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other territory if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned territory shall make an appropriate adjustment to the amount of tax charged on those profits in the first-mentioned territory. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities shall if necessary consult each other.
ARTICLE 10 Dividends 1.
Dividends paid by a company which is a resident of a territory for the purposes of its tax, being dividends to which a resident of the other territory is beneficially entitled, may be taxed in that other territory.
2.
However, those dividends may also be taxed in the territory of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that territory, but the tax so charged shall not exceed:
(a) in the territory in which the taxation law administered by the Australian Taxation Office is applied:
(i) 10 per cent of the gross amount of the dividends, to the extent to which the dividends have been fully "franked" in accordance with the federal law of that territory relating to its income tax; and
(ii) 15 per cent of the gross amount of the dividends in all other cases; and
(b) in the territory in which the taxation law administered by the Department of Taxation, Ministry of Finance, Taipei is applied:
(i) 10 per cent of the gross amount of the dividends, where the dividends are paid to a company (other than a partnership) which holds directly at least 25 per cent of the capital of the company paying the dividends; and
(ii) 15 per cent of the gross amount of the dividends in all other cases,
provided that if the relevant law in either territory at the date of signature of this Agreement is varied, otherwise than in minor respects so as to not affect its general character, the parties to this Agreement shall consult each other with a view to facilitating any amendment of this paragraph as may be appropriate.
3.
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the law, relating to tax, of the territory of which the company making the distribution is a resident for the purposes of its tax.
4.
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the dividends, being a resident of a territory, carries on business in the other territory of which the company paying the dividends is a resident, through a permanent establishment situated in that other territory, or performs in that other territory independent personal services from a fixed base situated in that other territory, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5.
Dividends paid by a company which is a resident of a territory, being dividends to which a person who is not a resident of the other territory is beneficially entitled, shall be exempt from tax in that other territory except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other territory. This paragraph shall not apply in relation to dividends paid by any company which is a resident of the territory in which the taxation law administered by the Australian Taxation Office is applied for the purposes of tax imposed by that territory and which is also a resident of the territory in which the taxation law administered by the Department of Taxation, Ministry of Finance, Taipei is applied for the purposes of tax imposed by that territory.
ARTICLE 11 Interest 1.
Interest arising in a territory, being interest to which a resident of the other territory is beneficially entitled, may be taxed in that other territory.
2.
However, that interest may also be taxed in the territory in which it arises, and according to the law of that territory, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3.
The term "interest" in this Article includes interest from government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, interest from any otherform of indebtedness and all other income assimilated to income from money lent by the law, relating to tax, of the territory in which the income arises.
4.
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the interest, being a resident of a territory, carries on business in the other territory, in which the interest arises, through a permanent establishment situated in that other territory, or performs in that other territory independent personal services from a fixed base situated in that other territory, and the indebtedness in respect of which the interest is paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5.
Interest shall be deemed to arise in a territory when the payer is an authority of that territory or a subdivision or local authority of that territory or a person who is a resident of that territory for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a territory or not, has in a territory a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment or fixed base, then the interest shall be deemed to arise in the territory in which the permanent establishment or fixed base is situated.
6.
Where, by reason of a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of that relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law, relating to tax, of each territory, but subject to the other provisions of this Agreement.
ARTICLE 12 Royalties 1.
Royalties arising in a territory, being royalties to which a resident of the other territory is beneficially entitled, may be taxed in that other territory.
2.
However, those royalties may also be taxed in the territory in which they arise, and according to the law of that territory, but the tax so charged shall not exceed 12.5 per cent of the gross amount of the royalties.
3.
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; or
(b) the use of, or the right to use, any industrial, commercial or scientific equipment; or
(c) the supply of scientific, technical, industrial or commercial knowledge or information; or
(d) the supply of any assistance that is 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) of this paragraph; or
(e) the reception of, or the right to receive, visual images or sounds, or both, transmitted to the public by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; or
(f) the use in connection with television broadcasting or radio broadcasting, or the right to use in connection with television broadcasting or radio broadcasting, visual images or sounds, or both, transmitted by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; or
(g) the use of, or the right to use:
(i) motion picture films; or
(ii) films or video tapes for use in connection with television; or
(iii) tapes for use in connection with radio broadcasting; or
(h)total or partial forbearance in respect of the use or supply of any property or right referred to in this paragraph.
4.
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the royalties, being a resident of a territory, carries on business in the other territory, in which the royalties arise, through a permanent establishment situated in that other territory, or performs in that other territory independent personal services from a fixed base situated in that other territory, and the property or right in respect of which the royalties are paid or credited is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5.
Royalties shall be deemed to arise in a territory when the payer is an authority of that territory or a subdivision or local authority of that territory or a person who is a resident of that territory for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of a territory or not, has in a territory a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the territory in which the permanent establishment or fixed base is situated.
6.
Where, by reason of a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law, relating to tax, of each territory, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of property 1.
Income, profits or gains derived by a resident of a territory from the alienation of real property situated in the other territory may be taxed in that other territory.
2.
Income, profits or gains from the alienation of property, other than real property, that forms part of the business property of a permanent establishment which an enterprise of a territory has in the other territory or pertains to a fixed base available in that other territory to a resident of the first-mentioned territory for the purpose of performing independent personal services, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise) or of that fixed base, may be taxed in that other territory.
3.
Income, profits or gains from the alienation of ships or aircraft operated in international traffic, or of property (other than real property) pertaining to the operation of those ships or aircraft, shall be taxable only in the territory of which the enterprise operating those ships or aircraft is a resident.
4.
Income, profits or gains derived by a resident of a territory from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of real property situated in the other territory, may be taxed in that other territory.
5.
Nothing in this Agreement shall affect the application of a law of a territory relating to the taxation of gains of a capital nature derived from the alienation of any property other than that to which any of the preceding paragraphs of this Article apply.
6.
In this Article, the term "real property" has the same meaning as it has in Article 6.
7.
The situation of real property shall be determined for the purposes of this Article in accordance with paragraph 3 of Article 6.
ARTICLE 14 Independent personal services 1.
Income derived by an individual who is a resident of a territory in respect of professional services or other activities of an independent character shall be taxable only in that territory unless a fixed base is regularly available to the individual in the other territory for the purpose of performing the individual's activities. If such a fixed base is available to the individual, the income may be taxed in the other territory but only so much of it as is attributable to activities exercised from that fixed base.
2.
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent personal services 1.
Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by an individual who is a resident of a territory in respect of an employment shall be taxable only in that territory unless the employment is exercised in the other territory. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other territory.
2.
Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of a territory in respect of an employment exercised in the other territory shall be taxable only in the first-mentioned territory if:
(a) the recipient is present in the other territory for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the year of income concerned; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other territory; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other territory; and
(d) the remuneration is, or upon the application of this Article will be, subject to tax in the first-mentioned territory.
3.
Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated by an enterprise of a territory in international traffic shall be taxable only in that territory.
ARTICLE 16 Directors' fees
Directors' fees and similar payments derived by a resident of a territory in the person's capacity as a member of the board of directors of a company which is a resident of the other territory may be taxed in that other territory. ARTICLE 17 Entertainers and sportspersons 1.
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians) and sportspersons from their personal activities as such may be taxed in the territory in which these activities are exercised.
2.
Where income in respect of the personal activities of an entertainer or a sportsperson as such accrues not to that entertainer or sportsperson but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the territory in which the activities of the entertainer or sportsperson are exercised.
ARTICLE 18 Pensions and annuities 1.
All pensions and annuities paid to a resident of a territory shall be taxable only in that territory.
2.
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
ARTICLE 19 Public service 1.
Salaries, wages and other similar remuneration, other than a pension or annuity, paid by an authority administering a territory or a subdivision of that territory or by a local authority of that territory to any individual in respect of services rendered in the discharge of public or administrative functions on behalf of such an authority shall be taxable only in that territory. However, such salaries, wages and other similar remuneration shall be taxable only in the other territory if the services are rendered in that other territory and the recipient is a resident of that other territory who:
(a)is a citizen or national of that territory; or
(b) did not become a resident of that territory solely for the purpose of performing the services.
2.
The provisions of paragraph 1 shall not apply to salaries, wages and other similar remuneration in respect of services rendered in connection with any trade or business carried on by any authority referred to in paragraph 1. In that case, the provisions of Article 15 or Article 16, as the case may be, shall apply.
ARTICLE 20 Students
Where a student, who is a resident of a territory or who was a resident of that territory immediately before visiting the other territory and who is temporarily present in that other territory solely for the purpose of the student's education, receives payments from sources outside that other territory for the purpose of the student's maintenance or education, those payments shall be exempt from tax in that other territory. ARTICLE 21 Other income 1.
Items of income of a resident of a territory, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that territory.
2.
However, any such income derived by a resident of a territory from sources in the other territory may also be taxed in that other territory.
3.
The provisions of paragraph 1 shall not apply to income, other than income from real property as defined in paragraph 2 of Article 6, derived by a resident of a territory where that income is effectively connected with a permanent establishment or fixed base situated in the other territory. In that case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
ARTICLE 22 Methods of elimination of double taxation
Subject to the provisions of the law of a territory from time to time in force relating to the allowance of a credit against tax payable in that territory of tax paid outside that territory (which shall not affect the general principle of this Article), tax paid under the law of the other territory and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of the first-mentioned territory from sources in the other territory shall be allowed as a credit against tax payable in the first-mentioned territory in respect of that income. The amount of credit, however, shall not exceed the amount of the tax in the first-mentioned territory on that income computed in accordance with its taxation laws and regulations. ARTICLE 23 Mutual agreement procedure 1.
Where a person considers that the actions of the competent authority of one or both of the territories result or will result for the person in taxation not in accordance with this Agreement, the person may, irrespective of the remedies provided by the domestic law of those territories concerning taxes to which this Agreement applies, present a case to the competent authority of the territory of which the person is a resident. The case must be presented within 3 years from the first notification of the action resulting in taxation not in accordance with this Agreement.
2.
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case with the competent authority of the other territory, with a view to the avoidance of taxation which is not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the domestic law of the territories.
3.
The competent authorities shall jointly endeavour to resolve any difficulties or doubts arising as to the interpretation or application of this Agreement. They may also consult together for the elimination of double taxation in cases not provided for in this Agreement.
4.
The competent authorities may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 24 Exchange of information 1.
The competent authorities shall exchange such information as is necessary for carrying out this Agreement or of the domestic law of each of the territories concerning taxes to which this Agreement applies insofar as the taxation under that law is not contrary to this Agreement. Any information received by the competent authority of a territory shall be treated as secret in the same manner as information obtained under the domestic law of that territory and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
2.
In no case shall the provisions of paragraph 1 be construed so as to impose on the competent authority of a territory the obligation:
(a) to carry out administrative measures at variance with the law or the administrative practice of that or of the other territory; or
(b) to supply information which is not obtainable under the law or in the normal course of the administration of that or of the other territory; or
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 25 Entry into effect
This Agreement shall enter into effect on the date on which the Australian Commerce and Industry Office and the Taipei Economic and Cultural Office notify each other in writing that the last of such things has been done as is necessary to give this Agreement effect in the domestic law of the respective territories. This Agreement shall have effect:
(a) in both territories, in respect of:
(i) withholding tax on income, profits or gains derived by a non-resident, in relation to income, profits or gains derived on or after the first day of the second month next following that in which the Agreement enters into effect;
(ii) tax in relation to profits to which Article 8 applies, on or after 1 January 1991;
(b) in respect of other tax of the territory in which the taxation law administered by the Australian Taxation Office is applied, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the Agreement enters into effect;
(c) in respect of other tax of the territory in which the taxation law administered by the Department of Taxation, Ministry of Finance, Taipei is applied, in relation to income, profits or gains of any year of income beginning on or after 1 January in the calendar year next following that in which the Agreement enters into effect. ARTICLE 26 Termination
This Agreement shall continue in effect indefinitely, but an authority administering either territory may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into effect, give to the other written notice of termination and, in that event, the Agreement shall cease to be effective:
(a) in both territories, in respect of withholding tax on income, profits or gains derived by a non-resident, in relation to income, profits or gains derived on or after the first day of the second month next following that in which the notice of termination is given;
(b) in respect of other tax of the territory in which the taxation law administered by the Australian Taxation Office is applied, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(c) in respect of other tax of the territory in which the taxation law administered by the Department of Taxation, Ministry of Finance, Taipei is applied, in relation to income, profits or gains of 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.
IN WITNESS WHEREOF the undersigned, being duly authorised, have signed this Agreement.
DONE in duplicate at Canberra this 29th day of May 1996 in the English and Chinese languages, both texts being equally authentic. In case of any divergence of interpretation, the English text shall prevail.
| FOR THE AUSTRALIAN
COMMERCE AND INDUSTRY OFFICE: |
FOR THE TAIPEI
ECONOMIC AND CULTURAL OFFICE: |
| Colin Heseltine | Chien-Hsion Hong |
ANNEX
THE AUSTRALIAN COMMERCE AND INDUSTRY OFFICE AND THE TAIPEI ECONOMIC AND CULTURAL OFFICE,
HAVING REGARD to the Agreement concerning the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes signed today at Canberra (in this Annex called "Agreement");
HAVE AGREED as follows:
SECTION 1. 1.If a subsequent agreement that is given effect under the International Tax Agreements Act 1953 in the territory in which the taxation law administered by the Australian Taxation Office is applied, includes a Non-Discrimination Article, the parties to this Annex will enter into negotiations with a view to providing the same treatment as is provided for in the Non-Discrimination Article; SECTION 2. 2.
Income, profits or gains derived by an organisation, or its successors, agreed by the competent authorities in an exchange of letters for the purposes of this paragraph as carrying on activities promoting trade, investment and cultural exchanges between the territories, shall be taxable solely in the territory on whose behalf the activities are carried on. The competent authorities will also specify in their exchange of letters the date from which the organisation shall be so taxable.
This Annex shall form an integral part of the Agreement.
IN WITNESS WHEREOF the undersigned, being duly authorised, have signed this Annex.
DONE in duplicate at Canberra this 29th day of May 1996 in the English and Chinese languages, both texts being equally authentic. In case of any divergence of interpretation, the English text shall prevail.
| FOR THE AUSTRALIAN
COMMERCE AND INDUSTRY OFFICE: |
FOR THE TAIPEI
ECONOMIC AND CULTURAL OFFICE: |
| Colin Heseltine | Chien-Hsion Hong |
History
Sch 1-50 have been repealed by No 45 of 2011, s 3 and Sch 1 items 67 and 69, effective 27 June 2011. For transitional provisions see note under s 3(1). The text of current treaties can be found in the Wolters Kluwer online product, Australian Tax Treaties Texts.
Former wording of the Schedules as repealed is reproduced below.
(Repealed by No 45 of 2011)
History
Former Sch 1 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the 2003 United Kingdom Convention and Notes from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 1 formerly read:
SCHEDULE 1 - 2003 United Kingdom Convention and Notes
ARTICLE 1 Persons covered
This Convention shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes covered
1
The existing taxes to which this Convention shall apply are:
(a) in the case of the United Kingdom:
(i) the income tax;
(ii) the corporation tax; and
(iii) the capital gains tax;
(b) in the case of Australia:
the income tax, the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, and the fringe benefits tax, imposed under the federal law of Australia.
2
This Convention shall also apply to any identical or substantially similar taxes which are imposed under the federal law of Australia or the law of the United Kingdom after the date of signature of this Convention in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes that have been made in the law of their respective States relating to the taxes to which this Convention applies within a reasonable period of time after those changes.
ARTICLE 3 General definitions
1
For the purposes of this Convention, unless the context otherwise requires:
(a) the term "United Kingdom" means Great Britain and Northern Ireland, including any area outside the territorial sea of the United Kingdom which in accordance with international law has been or may hereafter be designated, under the laws of the United Kingdom concerning the Continental Shelf, as an area within which the rights of the United Kingdom with respect to the seabed and subsoil and their natural resources may be exercised;
(b) 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; andand 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 seabed and subsoil of the Continental Shelf;
(vi) the Coral Sea Islands Territory,
(c) the term "Australian tax" means tax imposed by Australia, being tax to which this Convention applies by virtue of Article 2;
(d) the term "United Kingdom tax" means tax imposed by the United Kingdom, being tax to which this Convention applies by virtue of Article 2;
(e) the terms "a Contracting State" and "the other Contracting State" mean the United Kingdom or Australia, as the context requires;
(f) the term "person" includes an individual, a company and any other body of persons, but subject to paragraph 2 of this Article does not include a partnership;
(g) the term "company" means any body corporate or anything that is treated as a company or body corporate for tax purposes;
(h) the term "enterprise" applies to the carrying on of any business;
(i) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;
(j) the term "international traffic" means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely from a place or between places in the other Contracting State;
(k) the term "competent authority" means:
(i) in the case of the United Kingdom, the Commissioners of Inland Revenue or their authorised representative;
(ii) in the case of Australia, the Commissioner of Taxation or an authorised representative of the Commissioner;
(l) the term "national" means:
(i) in relation to the United Kingdom, any British citizen, or any British subject not possessing the citizenship of any other Commonwealth country or territory, provided that individual has the right of abode in the United Kingdom; and any company deriving its status as such from the law in force in the United Kingdom;
(ii) in relation to Australia, an Australian citizen or an individual not possessing citizenship who has been granted permanent residency status; and any company deriving its status as such from the law in force in Australia;
(m) the term "business" includes the performance of professional services and of other activities of an independent character;
(n) the term "tax" means Australian tax or United Kingdom tax as the context requires, but does not include any penalty or interest imposed under the law of either Contracting State relating to its tax;
(o) the term "recognised stock exchange" means:
(i) the Australian Stock Exchange and any other Australian stock exchange recognised as such under Australian law;
(ii) the London Stock Exchange and any other United Kingdom investment exchange recognised under United Kingdom law; or
(iii) any other stock exchange agreed upon by the competent authorities.
2
A partnership deriving its status from Australian law as a limited partnership which is treated as a taxable unit under the law of Australia shall be treated as a person for the purposes of this Convention.
3
As regards the application of this Convention at any time by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning that it has at that time under the laws of that State for the purposes of the taxes to which this Convention applies, any meaning under the applicable tax laws of that State prevailing over a meaning given to the term under other laws of that State.
ARTICLE 4 Residence
1
For the purposes of this Convention, a person is a resident of a Contracting State:
(a) in the case of the United Kingdom, if the person is a resident of the United Kingdom for the purposes of United Kingdom tax; and
(b) in the case of Australia, if the person is a resident of Australia for the purposes of Australian tax.A Contracting State or a political subdivision or local authority of that State is also a resident of that State for the purposes of this Convention.
2
A person is not a resident of a Contracting State for the purposes of this Convention if that person is liable to tax in that State in respect only of income or gains from sources in that State.
3
The status of an individual who, by reason of the preceding provisions of this Article is a resident of both Contracting States, shall be determined as follows:
(a) that individual shall be deemed to be a resident only of the Contracting State in which a permanent home is available to that individual; but if a permanent home is available in both States, or in neither of them, that individual shall be deemed to be a resident only of the State with which the individual's personal and economic relations are closer (centre of vital interests);
(b) if the Contracting State in which the centre of vital interests is situated cannot be determined, the individual shall be deemed to be a resident only of the State of which that individual is a national;
(c) if the individual is a national of both Contracting States or of neither of them, the competent authorities of the Contracting States shall endeavour to resolve the question by mutual agreement.
4
Where by reason of the preceding provisions of this Article a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident only of the State in which its place of effective management is situated.
5
Notwithstanding paragraph 4 of this Article, where by reason of paragraph 1 of this Article a company, which is a participant in a dual listed company arrangement, is a resident of both Contracting States then it shall be deemed to be a resident only of the Contracting State in which it is incorporated, provided it has its primary stock exchange listing in that State.
6
The term "dual listed company arrangement" as used in this Article means an arrangement pursuant to which two publicly listed companies, while maintaining their separate legal entity status, shareholdings and listings, align their strategic directions and the economic interests of their respective shareholders through:
(a) the appointment of common (or almost identical) boards of directors;
(b) management of the operations of the two companies on a unified basis;
(c) equalised distributions to shareholders in accordance with an equalisation ratio applying between the two companies, including in the event of a winding up of one or both of the companies;
(d) the shareholders of both companies voting in effect as a single decision-making body on substantial issues affecting their combined interests; and
(e) cross-guarantees as to, or similar financial support for, each other's material obligations or operations, except where the effect of the relevant regulatory requirements prevents such guarantees or financial support.
ARTICLE 5 Permanent establishment
1
For the purposes of this Convention, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
2
The term "permanent establishment" includes especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place relating to the exploration for or exploitation of natural resources; and
(g) an agricultural, pastoral or forestry property.
3
An enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if:
(a) it has a building site or construction or installation project in that State, or it undertakes a supervisory or consultancy activity in that State connected with such a site or project, but only if that site, project or activity lasts more than 12 months;
(b) it maintains substantial equipment for rental or other purposes within that other State (excluding equipment let under a hire-purchase agreement) for a period of more than 12 months; or
(c) a person acting in a Contracting State on behalf of an enterprise of the other Contracting State manufactures or processes in the first-mentioned State for the enterprise goods or merchandise belonging to the enterprise.
4
(a) The duration of activities under subparagraph (a) of paragraph 3 will be determined by aggregating the periods during which activities are carried on in a Contracting State by associated enterprises provided that the activities of the enterprise in that State are connected with the activities carried on in that State by its associate.
(b) The period during which two or more associated enterprises are carrying on concurrent activities will be counted only once for the purpose of determining the duration of activities.
(c) Under this Article, an enterprise shall be deemed to be associated with another enterprise if:
(i) one is controlled directly or indirectly by the other; or
(ii) both are controlled directly or indirectly by a third person or persons.
5
Notwithstanding the preceding provisions of this Article, an enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character.
6
Notwithstanding the provisions of paragraphs 1 and 2 of this Article, where a person - other than an agent of an independent status to whom paragraph 7 of this Article applies - is acting on behalf of an enterprise and has, and habitually exercises, in a Contracting State an authority to conclude contracts on behalf of the enterprise, that enterprise shall be deemed to have a permanent establishment in that State in respect of any activities which that person undertakes for that enterprise unless the activities of such person are limited to those mentioned in paragraph 5 of this Article which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.
7
An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a broker, general commission agent or any other agent of an independent status, provided that such brokers or agents are acting in the ordinary course of their business as such.
8
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
ARTICLE 6 Income from real property
1
Income derived by a resident of a Contracting State from real property may be taxed in the Contracting State in which the real property is situated.
2
The term "real property" shall have the meaning which it has under the law of the Contracting State in which the property is situated. The term shall in any case include:
(a) a lease of land or any other interest in or over land;
(b) property accessory to real property;
(c) livestock and equipment used in agriculture and forestry;
(d) usufruct of real property;
(e) a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine those deposits or resources; and
(f) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources.Ships and aircraft shall not be regarded as real property.
3
Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
4
The provisions of paragraph 1 of this Article shall apply to income derived from the direct use, letting, or use in any other form of real property.
5
The provisions of paragraphs 1, 3 and 4 of this Article shall also apply to the income from real property of an enterprise.
ARTICLE 7 Business profits
1
The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated in that other State. If the enterprise carries on business in that manner, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
2
Subject to the provisions of paragraph 3 of this Article, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated in that other State, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises.
3
In determining the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment, including executive and general administrative expenses so incurred, whether in the Contracting State in which the permanent establishment is situated or elsewhere.
4
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment. In such cases that law shall be applied, having regard to the information that is available, consistently with the principles of this Article.
5
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
6
Where profits include items of income or gains which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article.
7
Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits from insurance with non-residents provided that if the relevant law in force in either Contracting State at the date of signature of this Convention is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
ARTICLE 8 Shipping and air transport
1
Profits of an enterprise of a Contracting State from the operation of ships or aircraft in international traffic shall be taxable only in that State.
2
Notwithstanding the provisions of paragraph 1 of this Article, profits of an enterprise of a Contracting State from the operation of ships or aircraft may be taxed in the other Contracting State to the extent that they are profits derived from ship or aircraft operations confined solely to places in that other State.
3
For the purposes of this Article, profits from the operation of ships or aircraft in international traffic include:
(a) profits from the rental on a bareboat basis of ships or aircraft; and
(b) profits from the use, maintenance or rental of containers (including trailers and related equipment for the transport of containers) used for the transport of goods or merchandise;provided such rental or such use, maintenance or rental, as the case may be, is directly connected or ancillary to the operation of ships or aircraft in international traffic.
4
The provisions of paragraphs 1 and 2 of this Article shall also apply to profits from the participation in a pool, a joint business or an international operating agency, but only to so much of the profits so derived as is attributable to the participant in proportion to its share in the joint operation.
5
For the purposes of this Article, profits derived from:
(a) the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise which are shipped in a Contracting State and are discharged at the same or another place in that State; or
(b) the use of a ship or aircraft for haulage, survey or dredging activities, or for exploration or extraction activities in relation to natural resources, where such activities are undertaken in a Contracting State;shall be treated as profits from ship or aircraft operations confined solely to places in that State.
ARTICLE 9 Associated enterprises
1
Where:
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State;and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which might, but for those conditions, have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits accruing to an enterprise. In such cases that law shall be applied, having regard to the information that is available, consistently with the principles of this Article.
3
Where profits on which an enterprise of a Contracting State has been charged to tax in that State are also included, by virtue of the provisions of paragraphs 1 or 2, in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned State shall make an appropriate adjustment to the amount of tax it has charged on those profits. In determining such adjustment, due regard shall be had to the other provisions of this Convention and the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
1
Dividends paid by a company which is a resident of a Contracting State for the purposes of its tax, being dividends beneficially owned by a resident of the other Contracting State, may be taxed in that other State.
2
However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax charged shall not exceed:
(a) 5 per cent of the gross amount of the dividends, if the beneficial owner of the dividends is a company which holds directly at least 10 per cent of the voting power in the company paying the dividends; and
(b) 15 per cent of the gross amount of the dividends in all other cases.
3
Notwithstanding the provisions of paragraph 2 of this Article, dividends shall not be taxed in the Contracting State of which the company paying the dividends is a resident if the beneficial owner of the dividends is a company that is a resident of the other Contracting State that has owned shares representing 80 per cent or more of the voting power of the company paying the dividends for a 12 month period ending on the date the dividend is declared and the company that is the beneficial owner of the dividends:
(a) has its principal class of shares listed on a recognised stock exchange specified in subparagraph (i) or (ii) of subparagraph (o) of paragraph 1 of Article 3 and regularly traded on one or more recognised stock exchanges;
(b) is owned directly or indirectly by one or more companies whose principal class of shares is listed on a recognised stock exchange specified in subparagraph (i) or (ii) of subparagraph (o) of paragraph 1 of Article 3 and regularly traded on one or more recognised stock exchanges; or
(c) does not meet the requirements of subparagraphs (a) or (b) of this paragraph but the competent authority of the first-mentioned Contracting State determines, in accordance with the law of that State, that the establishment, acquisition or maintenance of the company that is the beneficial owner of the dividends and the conduct of its operations did not have as one of its principal purposes the obtaining of benefits under this Convention. The competent authority of the first-mentioned Contracting State shall consult the competent authority of the other Contracting State before refusing to grant benefits of this Convention under this subparagraph.
4
The term "dividends" as used in this Article means income from shares or other rights, not being debt-claims, participating in profits, as well as income from other corporate rights which is subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribution is a resident and also includes any other item which, under the laws of the Contracting State of which the company paying the dividend is a resident, is treated as a dividend or distribution of a company.
5
The provisions of paragraphs 1, 2 and 3 of this Article shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated in that other State and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 of this Convention shall apply.
6
Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, being dividends beneficially owned by a person who is not a resident of the other Contracting State, except insofar as the holding in respect of which such dividends are paid is effectively connected with a permanent establishment situated in that other State, nor subject the company's undistributed profits to a tax on undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State. This paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of the United Kingdom for the purposes of United Kingdom tax.
7
No relief shall be available under this Article if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of the shares or other rights in respect of which the dividend is paid to take advantage of this Article by means of that creation or assignment.
8
For the purposes of paragraph 3 of this Article, the term "principal class of shares" means the ordinary or common shares of the company, provided that such class of shares represents the majority of the voting power and value of the company. If no single class of ordinary or common shares represents the majority of the voting power and value of the company, the "principal class of shares" is that class or those classes that in the aggregate represent a majority of the voting power and value of the company.
ARTICLE 11 Interest
1
Interest arising in a Contracting State and beneficially owned by a resident of the other Contracting State may be taxed in that other State.
2
However, that interest may also be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3
Notwithstanding paragraph 2, interest arising in a Contracting State and beneficially owned by a resident of the other Contracting State may not be taxed in the first-mentioned State if:
(a) the interest is derived by a Contracting State or by a political or administrative sub-division or a local authority thereof, or by any other body exercising governmental functions in a Contracting State, or by a bank performing central banking functions in a Contracting State; or
(b) the interest is derived by a financial institution which is unrelated to and dealing wholly independently with the payer. For the purposes of this Article, the term "financial institution" means a bank or other enterprise substantially deriving its profits by raising debt finance in the financial markets or by taking deposits at interest and using those funds in carrying on a business of providing finance.
4
Notwithstanding paragraph 3, interest referred to in subparagraph (b) of that paragraph may be taxed in the State in which it arises at a rate not exceeding 10 per cent of the gross amount of the interest if the interest is paid as part of an arrangement involving back-to-back loans or other arrangement that is economically equivalent and intended to have a similar effect to back-to-back loans.
5
The term "interest" as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage and whether or not carrying a right to participate in the debtor's profits, and in particular, income from government securities and income from bonds or debentures, and income from any other form of indebtedness. The term "interest" also includes income which is subjected to the same taxation treatment as income from money lent by the law of the Contracting State in which the income arises. The term "interest" shall not include any item which is treated as a dividend under the provisions of Article 10 of this Convention.
6
The provisions of paragraphs 1 and 2, subparagraph (b) of paragraph 3 and paragraph 4 of this Article shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated in that other State and the indebtedness in respect of which the interest is paid or credited is effectively connected with such permanent establishment. In such case, the provisions of Article 7 of this Convention shall apply.
7
Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State a permanent establishment in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment, then the interest shall be deemed to arise in the State in which the permanent establishment is situated.
8
Where, by reason of a special relationship between the payer and the beneficial owner of the interest, or between both of them and some other person, the amount of the interest paid or credited exceeds, for whatever reason, the amount which might reasonably have been expected to have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the amount of the interest paid or credited shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention.
9
No relief shall be available under this Article if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of the debt-claim in respect of which the interest is paid to take advantage of this Article by means of that creation or assignment.
ARTICLE 12 Royalties
1
Royalties arising in a Contracting State and beneficially owned by a resident of the other Contracting State may be taxed in that other State.
2
However, those royalties may also be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 5 per cent of the gross amount of the royalties.
3
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 supply of scientific, technical, industrial or commercial knowledge or information;
(c) the supply of any ancillary and subsidiary assistance that is furnished as a means of enabling the application or enjoyment of any such item as is mentioned in subparagraph (a) or (b) of this paragraph;
(d) the use of or the right to use:
(i) motion picture films; or
(ii) films or audio or video tapes or disks, or any other means of image or sound reproduction or transmission for use in connection with television, radio or other broadcasting; or
(e) total or partial forbearance in respect of the useor supply of any property or right referred to in this paragraph.
4
The provisions of paragraphs 1 and 2 of this Article shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated in that other State, and the right or property in respect of which the royalties are paid or credited is effectively connected with that permanent establishment. In that case the provisions of Article 7 of this Convention shall apply.
5
Royalties shall be deemed to arise in a Contracting State when the payer is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of a Contracting State or not, has in a Contracting State a permanent establishment in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment, then the royalties shall be deemed to arise in the State in which the permanent establishment is situated.
6
Where, by reason of a special relationship between the payer and the beneficial owner of the royalties, or between both of them and some other person, the amount of the royalties paid or credited exceeds, for whatever reason, the amount which might reasonably have been expected to have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess paid or credited shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention.
7
The provisions of this Article shall not apply if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of the rights in respect of which the royalties are paid to take advantage of this Article by means of that creation or assignment.
ARTICLE 13 Alienation of property
1
Income or gains derived by a resident of a Contracting State from the alienation of real property situated in the other Contracting State may be taxed in that other State.
2
Income or gains from the alienation of property, other than real property, forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State, including such income or gains from the alienation of such a permanent establishment (alone or with the whole enterprise), may be taxed in that other State.
3
Income or gains derived by a resident of a Contracting State from the alienation of ships or aircraft operated in international traffic, or of property (other than real property) pertaining to the operation of those ships or aircraft, shall be taxable only in that Contracting State.
4
Income or gains derived by a resident of a Contracting State from the alienation of any shares or other interests in a company, or of an interest of any kind in a partnership, trust or other entity, where the value of the assets of such entity, whether they are held directly or indirectly (including through one or more interposed entities, such as, for example, through a chain of companies), is principally attributable to real property situated in the other Contracting State, may be taxed in that other State.
5
An individual who elects, under the taxation law of a Contracting State, to defer taxation on income or gains relating to property which would otherwise be taxed in that State upon the individual ceasing to be a resident of that State for the purposes of its tax, shall, if the individual is a resident of the other State, be taxable on income or gains from the subsequent alienation of that property only in that other State.
6
Nothing in this Convention affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of any property other than that to which any of the preceding paragraphs of this Article apply.
7
In this Article, the term "real property" has the same meaning as it has in Article 6.
8
The situation of interests or rights referred to in paragraph 2 of Article 6 shall be determined for the purposes of this Article in accordance with paragraph 3 of Article 6.
9
The provisions of this Article shall not affect the right of the United Kingdom to levy according to its laws a tax chargeable in respect of income or gains from the alienation of any property on a person who is a resident of the United Kingdom at any time during the fiscal year in which the property is alienated, or has been so resident at any time during the 6 years immediately preceding that year.
ARTICLE 14 Income from employment
1
Subject to the provisions of Articles 17 and 18 of this Convention, salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
2
Notwithstanding the provisions of paragraph 1 of this Article, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
(a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the fiscal year or year of income of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment which the employer has in the other State.
3
Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic may be taxed in the Contracting State of which the enterprise operating the ship or aircraft is a resident.
4
In relation to remuneration of a director of a company derived from the company the preceding provisions of this Article shall apply as if the remuneration were remuneration of an employee in respect of an employment and as if the references to an employer were references to the company.
ARTICLE 15 Fringe benefits
1
Where, except for the application of this Article, a fringe benefit is taxable in both Contracting States the benefit will be taxable only in the Contracting State which would have the primary taxing right over that benefit if the value of the benefit were paid to the employee as ordinary employment income.
2
For the purposes of this Article:
(a) "fringe benefit" has the meaning it has under Australia's Fringe Benefits Tax Assessment Act 1986 (Commonwealth), as it may be amended from time to time, and does not include a benefit arising from the acquisition of an option over shares under an employee share scheme;
(b) a Contracting State has a "primary taxing right" to the extent that it has a taxing right under this Convention in respect of the remuneration for the relevant employment and the other Contracting State is required under this Convention to allow relief for any taxes imposed in respect of such remuneration by the first-mentioned Contracting State.
ARTICLE 16 Entertainers and sportspersons
1
Notwithstanding the provisions of Articles 7 and 14 of this Convention, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson, from that person's personal activities as such exercised in the other Contracting State, may be taxed in that other State.
2
Where income in respect of personal activities exercised by an entertainer or a sportsperson in that person's capacity as such accrues not to that person but to another person, that income may, notwithstanding the provisions of Articles 7 and 14 of this Convention, be taxed in the Contracting State in which the activities of the entertainer or sportsperson are exercised.
ARTICLE 17 Pensions and annuities
1
Pensions (including government pensions) and annuities paid to a resident of a Contracting State shall be taxable only in that State.
2
The term "annuity" means a stated sum payable periodically to an individual at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
ARTICLE 18 Government service
1
Salaries, wages and other similar remuneration, other than a pension or annuity, paid by a Contracting State or a political subdivision or local authority of that State to an individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a national of that State; or
(b) did not become a resident of that State solely for the purpose of rendering the services.
2
The provisions of paragraph 1 of this Article shall not apply to salaries, wages and other similar remuneration in respect of services rendered in connection with any trade or business carried on by a Contracting State or a political subdivision or local authority of that State. In that case, the provisions of Article 14, 15 or 16, as the case may be, shall apply.
ARTICLE 19 Students
Where a student, who is a resident of a Contracting State or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of the student's education, receives payments from sources outside that other State for the purpose of the student's maintenance or education, those payments shall be exempt from tax in that other State.ARTICLE 20 Other income
1
Items of income beneficially owned by a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Convention shall be taxable only in that State.
2
The provisions of paragraph 1 of this Article shall not apply to income, other than income from real property as defined in paragraph 2 of Article 6 of this Convention, derived by a resident of a Contracting State who carries on business in the other Contracting State through a permanent establishment situated therein and the right or property in respect of which the income is paid is effectively connected with such permanent establishment. In that case the provisions of Article 7 of this Convention shall apply.
3
Notwithstanding the provisions of paragraphs 1 and 2 of this Article, items of income of a resident of a Contracting State not dealt with in the foregoing Articles of this Convention from sources in the other Contracting State may also be taxed in the other Contracting State.
4
Where, by reason of a special relationship between the person referred to in paragraph 1 of this Article and some other person, or between both of them and some third person, the amount of the income referred to in that paragraph exceeds the amount (if any) which might reasonably have been expected to have been agreed upon between them in the absence of such a relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such a case, the excess part of the income shall remain taxable according to the laws of each Contracting State, due regard being had to the other applicable provisions of this Convention.
5
A person may not rely on this Article to obtain relief from taxation if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of the rights in respect of which the income is derived to take advantage of this Article by means of that creation or assignment.
ARTICLE 21 Source of income
Income or gains derived by a resident of the United Kingdom which, under any one or more of Articles 6 to 8 and 10 to 16 and 18, may be taxed in Australia shall for the purposes of the laws of Australia relating to its tax be deemed to arise from sources in Australia.ARTICLE 22 Elimination of double taxation
1
Subject to the provisions of the laws of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article):
(a) United Kingdom tax paid under the laws of the United Kingdom and in accordance with this Convention, whether directly or by deduction, in respect of income or gains derived by a person who is a resident of Australia from sources in the United Kingdom shall be allowed as a credit against Australian tax payable in respect of that income;
(b) Where a company which is a resident of the United Kingdom and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly at least 10 per cent of the voting power of the first-mentioned company, the credit shall include the United Kingdom tax paid by that first-mentioned company in respect of that portion of its profits out of which the dividend is paid.
2
Subject to the provisions of the law of the United Kingdom regarding the allowance as a credit against United Kingdom tax of tax payable in a territory outside the United Kingdom (which shall not affect the general principle hereof):
(a) Australian tax payable under the laws of Australia and in accordance with this Convention, whether directly or by deduction, on income or chargeable gains from sources within Australia (excluding in the case of a dividend, tax payable in respect of the profits out of which the dividend is paid) shall be allowed as a credit against any United Kingdom tax computed by reference to the same income or chargeable gains by reference to which the Australian tax is computed;
(b) in the case of a dividend paid by a company which is a resident of Australia to a company which is a resident of the United Kingdom and which controls directly or indirectly at least 10 per cent of the voting power in the company paying the dividend, the credit shall take into account (in addition to any Australian tax for which credit may be allowed under the provisions of subparagraph (a) of this paragraph) the Australian tax payable by the company in respect of the profits out of which such dividend is paid.
3
For the purposes of paragraph 1 and 2 of this Article, income or gains owned by a resident of a Contracting State which may be taxed in the other Contracting State in accordance with this Convention shall be deemed to arise from sources in that other Contracting State.
ARTICLE 23 Limitation of relief
1
Where under this Convention any income or gains are relieved from tax in a Contracting State and, under the law in force in the other Contracting State, a person in respect of that income or those gains is taxed by reference to the amount thereof which is remitted to or received in that other State and not by reference to the full amount thereof, then the relief to be allowed under this Convention in the first-mentioned State shall apply only to so much of the income or gains as is taxed in the other State.
2
Where under this Convention any income or gains are relieved from tax in a Contracting State and, under the law in force in the other Contracting State, an individual in respect of that income or those gains is exempt from tax by virtue of being a temporary resident of the other State within the meaning of the applicable tax laws of that other State, then the relief to be allowed under this Convention in the first-mentioned State shall not apply to the extent that that income or those gains are exempt from tax in the other State.
ARTICLE 24 Partnerships
Where a partnership is treated as a taxable unit under the law of a Contracting State and under any provision of this Convention is entitled, as a resident of that State, to relief from tax in the other Contracting State on any income or gains, that provision shall not be construed as restricting the right of that other State to tax any member of the partnership who is a resident of that other State on that member's share of such income or gains; but any such income or gains shall be treated for the purposes of Article 22 of this Convention as income or gains from sources in the first-mentioned State.ARTICLE 25 Non-discrimination
1
Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, in particular with respect to residence, are or may be subjected.
2
The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities in similar circumstances.
3
Except where the provisions of paragraph 1 of Article 9, paragraph 8 or 9 of Article 11, paragraph 6 or 7 of Article 12, or paragraph 4 or 5 of Article 20 of this Convention apply, interest, royalties and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State shall for the purpose of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the first-mentioned State.
4
Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of the first-mentioned State in similar circumstances are or may be subjected.
5
Nothing contained in this Article shall be construed as obliging a Contracting State to grant to individuals who are residents of the other Contracting State any of the personal allowances, reliefs and reductions for tax purposes which are granted to individuals so resident.
6
This Article shall not apply to any provision of the laws of a Contracting State which:
(a) is designed to prevent the avoidance or evasion of taxes;
(b) does not permit the deferral of tax arising on the transfer of an asset where the subsequent transfer of the asset by the transferee would be beyond the taxing jurisdiction of the Contracting State under its laws;
(c) provides for consolidation of group entities for treatment as a single entity for tax purposes provided that Australian resident companies that are owned directly or indirectly by residents of the United Kingdom can access such consolidation treatment on the same terms and conditions as other Australian resident companies;
(d) provides deductions to eligible taxpayers for expenditure on research and development; or
(e) is otherwise agreed to be unaffected by this Article in an Exchange of Notes between the Government of Australia and the Government of the United Kingdom.
7
The provisions of this Article shall apply to the taxes which are the subject of this Convention.
ARTICLE 26 Mutual agreement procedure
1
Where a person who is a resident of a Contracting State considers that the actions of one or both of the Contracting States result or will result for that person in taxation not in accordance with this Convention, that person may, irrespective of the remedies provided by the domestic law of those States concerning taxes to which this Convention applies, present a case to the competent authority of the Contracting State of which that person is a resident or, if the case comes under paragraph 1 of Article 25 of this Convention, to that of the Contracting State of which that person is a national.
2
The competent authority shall endeavour, if the case appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with this Convention.
3
The competent authorities of the Contracting States shall jointly endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of this Convention. They may also consult together for the elimination of double taxation in cases not provided for in this Convention.
4
The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs.
5
For the purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of this Convention may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph 3 of this Article or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States.
ARTICLE 27 Exchange of information
1
The competent authorities of the Contracting States shall exchange such information as is foreseeably relevant to the administration or enforcement of the provisions of this Convention or of the domestic laws of the Contracting States concerning taxes to which this Convention applies insofar as the taxation under those laws is not contrary to this Convention. The exchange of information is not restricted by Article 1 of this Convention. Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic law of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Convention applies. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
2
If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall obtain that information in the same manner and to the same extent as if the tax of the first-mentioned State were the tax of that other State and were being imposed by that other State, notwithstanding that the other State may not, at that time, need such information for the purposes of its own tax.
3
In no case shall the provisions of paragraphs 1 or 2 of this Article be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; or
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 28 Members of diplomatic missions or permanent missions and consular posts
Nothing in this Convention shall affect the fiscal privileges of members of diplomatic missions or permanent missions or consular posts under the general rules of international law or under the provisions of special international agreements.ARTICLE 29 Entry into force
1
Each of the Contracting States shall notify the other in writing through the diplomatic channel of the completion of the procedures required by its law for the entry into force of this Convention. This Convention shall enter into force on the date of the later notification, and shall thereupon have effect:
(a) in the case of Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July next following the date on which this Convention enters into force;
(ii) in respect of fringe benefits tax, in relation to fringe benefits provided on or after 1 April next following the date on which this Convention enters into force;
(iii) in respect of other Australian tax, in relation to income or gains of any year of income beginning on or after 1 July next following the date on which this Convention enters into force;
(b) in the case of the United Kingdom:
(i) in respect of taxes withheld at source, for amounts paid or credited on or after 1 July next following the date on which this Convention enters into force;
(ii) in respect of income tax not described in clause (i) of this subparagraph and capital gains tax, for any year of assessment beginning on or after 6 April next following the date on which this Convention enters into force;
(iii) in respect of corporation tax, for any financial year beginning on or after 1 April next following the date on which this Convention enters into force.
2
The Agreement between the Government of the Commonwealth of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland signed at Canberra on 7 December 1967 (as amended by the Protocol signed at Canberra on 29 January 1980) ("the Agreement") shall be terminated and shall cease to have effect in respect of the taxes to which this Convention applies in accordance with the provisions of paragraph 1 of this Article. In relation to tax credits in respect of dividends paid by companies which are residents of the United Kingdom, the Agreement shall be terminated and shall cease to have effect in respect of dividends paid on or after 1 July next following the date on which this Convention enters into force.
3
Notwithstanding the entry into force of this Convention, an individual who is entitled to the benefits of Article 16 of the Agreement at the time of the entry into force of this Convention shall continue to be entitled to such benefits until such time as the individual would have ceased to be entitled to such benefits if the Agreement had remained in force.
ARTICLE 30 Termination
This Convention shall remain in force until terminated by one of the Contracting States. Either Contracting State may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give written notice of termination through the diplomatic channel and, in that event, the Convention shall cease to have effect:
(a) in the case of Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of fringe benefits tax, in relation to fringe benefits provided on or after 1 April in the calendar year next following that in which the notice of termination is given;
(iii) in respect of other Australian tax, in relation to income or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in the case of the United Kingdom:
(i) in respect of taxes withheld at source, for amounts paid or credited on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of income tax not described in clause (i) of this subparagraph and capital gains tax, for any year of assessment beginning on or after 6 April in the calendar year next following that in which the notice of termination is given;
(iii) in respect of corporation tax, for any financial year beginning on or after 1 April in the calendar year next following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorised thereto by their respective Governments, have signed this Convention.
DONE in duplicate at Canberra this 21st day of August 2003
2003 UNITED KINGDOM NOTES
FOR THE GOVERNMENT OF AUSTRALIA
PETER COSTELLO [Signatures omitted]FOR THE GOVERNMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND
ALASTAIR GOODLAD
1.
With reference generally to the application of the Convention (including these Notes), the Contracting States agree that:
(a) the term "income or gains" includes "profits";
(b) the term "laws" includes the full body of law, and is not limited to statutory law;
(c) the terms "paid or credited" and "payments or credits" shall not include the recording of internal transactions between a permanent establishment and another part of the same enterprise;
(d) the expression "any provision of the laws of a Contracting State which is designed to prevent the avoidance or evasion of taxes" includes:
(i) measures designed to address thin capitalisation, dividend stripping and transfer pricing;
(ii) controlled foreign company, transferor trust and foreign investment fund rules;
(iii) measures designed to ensure that taxes can be effectively recovered (conservancy measures); and
(e) nothing in the Convention shall be construed as restricting, in any manner, the application of any provision of the laws of a Contracting State which is designed to prevent the avoidance or evasion of taxes.
2.
With reference to Article 5 (Permanent establishment), the Contracting States agree that the term "permanent establishment" fully encompasses the concept of a "fixed base" used in other double tax treaties in the context of independent personal services.
3.
With reference to Article 7 (Business profits), the Contracting States agree that:
(a) nothing in paragraph 3 of the Article shall permit the deduction of an expense which would not be deductible if the permanent establishment were an independent enterprise which incurred the expense; and
(b) where:
(i) a resident of a Contracting State is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; andthe enterprise carried on by the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated in that other State and that share of business profits shall be attributed to that permanent establishment.
(ii) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other State,
4.
With reference to Article 9 (Associated enterprises), the Contracting States note that the expression "dealing wholly independently with one another" is included in paragraph 1 of the Article to conform to Australia's consistent treaty practice and to address Australia's concerns that the appropriate benchmark for determining the conditions operating between the associated enterprises should have regard to whether those dealings between the enterprises occurred on a truly independent basis.
5.
With reference to Article 10 (Dividends), the Contracting States agree that if the relevant law in either Contracting State at the date of signature of the Convention is varied otherwise than in minor respects so as not to affect its general character, the Contracting States shall consult each other with a view to agreeing to any amendment of paragraph 2 and 3 of the Article as may be appropriate.
6.
With reference to Article 11 (Interest), the Contracting States agree that:
(a) the term "financial institution" shall not include a corporate treasury or a member of a corporate group performing financing services for the group; and
(b) nothing in the Convention shall have the effect of subjecting to tax in a Contracting State any interest paid by a resident of that State to a resident of the other State where the payer has outside both Contracting States a permanent establishment in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment.
7.
With reference to Article 12 (Royalties), the Contracting States agree that:
(a) the term "royalties" shall not include payments for the use of spectrum licences. The provisions of Article 7 of the Convention shall apply to such payments; and
(b) nothing in the Convention shall have the effect of subjecting to tax in a Contracting State any royalties paid by a resident of that State to a resident of the other State where the payer has outside both Contracting States a permanent establishment in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment.
8.
With reference to Article 14 (Income from employment), the Contracting States agree that:
(a) income or gains derived by employees in relation to share option schemes shall be treated as "other similar remuneration" for the purposes of Article 14;
(b) unless the facts otherwise indicate, the period of employment to which the option relates shall be taken to be the period between the grant of the option and the date on which all the conditions for its exercise have been satisfied (the vesting of the option); and
(c) where a resident of a Contracting State derives such income or gains, and
(i) the period of employment to which the share option relates is the period between grant and vesting of the option;
(ii) the employee remains in that employment at the date of alienation or exercise of the option; andthe proportion of the income or gain which shall be attributable to employment exercised in the other Contracting State shall be determined in accordance with the ratio of the number of days of employment exercised in that State between grant and vesting of the option to the total number of days of employment exercised between grant and vesting of the option.
(iii) that employment has been exercised by the employee in the other Contracting State during all or part of the period between grant and vesting of the option;
9.
With reference to Article 25 (Non-discrimination), the Contracting States agree that:
(a) in relation to paragraph 4 and subparagraph 6(c) of the Article, the reference to capital being owned or controlled "directly or indirectly" includes cases where the capital is held through a chain of companies or other entities; and
(b) nothing in the Article shall be construed as obliging a Contracting State to allow tax rebates and credits in relation to dividends received by a person who is a resident of the other Contracting State.
10.
With reference to Article 26 (Mutual agreement procedure) and Article 27 (Exchange of information), the Contracting States agree that the provisions of the Articles shall have effect from the date of entry into force of the Convention, without regard to the date of the relevant transactions or the taxable or chargeable period to which the matter relates.
11.
With reference to Article 26 (Mutual agreement procedure), the Contracting States agree that in relation to paragraph 1 of the Article, the applicable time limits in the domestic laws bearing on the time available for presenting a case to the relevant competent authority shall apply, whether or not those applicable time limits specifically refer to the competent authority process.
12.
Miscellaneous
The Contracting States agree that the two Governments shall consult each other at intervals of not more than five years regarding the terms, operation and application of the Convention with a view to ensuring that it continues to serve the purposes of avoiding double taxation and preventing fiscal evasion. The first such consultation shall take place no later than the end of the fifth year after the entry into force of the Convention.If the foregoing proposals are acceptable to the Government of the United Kingdom of Great Britain and Northern Ireland, the Department has the honour to propose that the present Note and the High Commission's confirmatory Note in reply shall constitute an Agreement on certain matters between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital Gains, which shall enter into force at the same time as the entry into force of the Convention.
The Department of Foreign Affairs and Trade avails itself of this opportunity to renew to the British High Commission to Australia the assurances of its highest consideration.
[Seal omitted]
CANBERRA
21 August 2003
41/03
1.
With reference generally to the application of the Convention (including these Notes), the Contracting States agree that:
(a) the term "income or gains" includes "profits";
(b) the term "laws" includes the full body of law, and is not limited to statutory law;
(c) the terms "paid or credited" and "payments or credits" shall not include the recording of internal transactions between a permanent establishment and another part of the same enterprise;
(d) the expression "any provision of the laws of a Contracting State which is designed to prevent the avoidance or evasion of taxes" includes:
(i) measures designed to address thin capitalisation, dividend stripping and transfer pricing;
(ii) controlled foreign company, transferor trust and foreign investment fund rules;
(iii) measures designed to ensure that taxes can be effectively recovered (conservancy measures); and
(e) nothing in the Convention shall be construed as restricting, in any manner, the application of any provision of the laws of a Contracting State which is designed to prevent the avoidance or evasion of taxes.
2.
With reference to Article 5 (Permanent establishment), the Contracting States agree that the term "permanent establishment" fully encompasses the concept of a "fixed base" used in other double tax treaties in the context of independent personal services.
3.
With reference to Article 7 (Business profits), the Contracting States agree that:
(a) nothing in paragraph 3 of the Article shall permit the deduction of an expense which would not be deductible if the permanent establishment were an independent enterprise which incurred the expense; and
(b) where:
(i) a resident of a Contracting State is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; andthe enterprise carried on by the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated in that other State and that share of business profits shall be attributed to that permanent establishment.
(ii) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other State,
4.
With reference to Article 9 (Associated enterprises), the Contracting States note that the expression "dealing wholly independently with one another" is included in paragraph 1 of the Article to conform to Australia's consistent treaty practice and to address Australia's concerns that the appropriate benchmark for determining the conditions operating between the associated enterprises should have regard to whether those dealings between the enterprises occurred on a truly independent basis.
5.
With reference to Article 10 (Dividends), the Contracting States agree that if the relevant law in either Contracting State at the date of signature of the Convention is varied otherwise than in minor respects so as not to affect its general character, the Contracting States shall consult each other with a view to agreeing to any amendment of paragraph 2 and 3 of the Article as may be appropriate.
6.
With reference to Article 11 (Interest), the Contracting States agree that:
(a) the term "financial institution" shall not include a corporate treasury or a member of a corporate group performing financing services for the group; and
(b) nothing in the Convention shall have the effect of subjecting to tax in a Contracting State any interest paid by a resident of that State to a resident of the other State where the payer has outside both Contracting States a permanent establishment in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment.
7.
With reference to Article 12 (Royalties), the Contracting States agree that:
(a) the term "royalties" shall not include payments for the use of spectrum licences. The provisions of Article 7 of the Convention shall apply to such payments; and
(b) nothing in the Convention shall have the effect of subjecting to tax in a Contracting State any royalties paid by a resident of that State to a resident of the other State where the payer has outside both Contracting States a permanent establishment in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment.
8.
With reference to Article 14 (Income from employment), the Contracting States agree that:
(a) income or gains derived by employees in relation to share option schemes shall be treated as "other similar remuneration" for the purposes of Article 14;
(b) unless the facts otherwise indicate, the period of employment to which the option relates shall be taken to be the period between the grant of the option and the date on which all the conditions for its exercise have been satisfied (the vesting of the option); and
(c) where a resident of a Contracting State derives such income or gains, and
(i) the period of employment to which the share option relates is the period between grant and vesting of the option;
(ii) the employee remains in that employment at the date of alienation or exercise of the option; andthe proportion of the income or gain which shall be attributable to employment exercised in the other Contracting State shall be determined in accordance with the ratio of the number of days of employment exercised in that State between grant and vesting of the option to the total number of days of employment exercised between grant and vesting of the option.
(iii) that employment has been exercised by the employee in the other Contracting State during all or part of the period between grant and vesting of the option;
9.
With reference to Article 25 (Non-discrimination), the Contracting States agree that:
(a) in relation to paragraph 4 and subparagraph 6(c) of the Article, the reference to capital being owned or controlled "directly or indirectly" includes cases where the capital is held through a chain of companies or other entities; and
(b) nothing in the Article shall be construed as obliging a Contracting State to allow tax rebates and credits in relation to dividends received by a person who is a resident of the other Contracting State.
10.
With reference to Article 26 (Mutual agreement procedure) and Article 27 (Exchange of information), the Contracting States agree that the provisions of the Articles shall have effect from the date of entry into force of the Convention, without regard to the date of the relevant transactions or the taxable or chargeable period to which the matter relates.
11.
With reference to Article 26 (Mutual agreement procedure), the Contracting States agree that in relation to paragraph 1 of the Article, the applicable time limits in the domestic laws bearing on the time available for presenting a case to the relevant competent authority shall apply, whether or not those applicable time limits specifically refer to the competent authority process.
12.
Miscellaneous
The Contracting States agree that the two Governments shall consult each other at intervals of not more than five years regarding the terms, operation and application of the Convention with a view to ensuring that it continues to serve the purposes of avoiding double taxation and preventing fiscal evasion. The first such consultation shall take place no later than the end of the fifth year after the entry into force of the Convention.If the foregoing proposals are acceptable to the Government of the United Kingdom of Great Britain and Northern Ireland, the Department has the honour to propose that the present Note and the High Commission's confirmatory Note in reply shall constitute an Agreement on certain matters between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital Gains, which shall enter into force at the same time as the entry into force of the Convention.
The Department of Foreign Affairs and Trade avails itself of this opportunity to renew to the British High Commission to Australia the assurances of its highest consideration."
The High Commission has the honour to advise that the Department's proposals are acceptable to the Government of the United Kingdom of Great Britain and Northern Ireland and that the Department's Note and this confirmatory Note in reply shall constitute an Agreement on certain matters between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income and on Capital Gains, which shall enter into force at the same time as the entry into force of the Convention.
The British High Commission to Australia avails itself of this opportunity to renew to the Department of Foreign Affairs and Trade the assurances of its highest consideration.
[Seal omitted]
CANBERRA
21 August 2003
Sch 1 substituted for Sch 1 and 1A by No 123 of 2003.
Sch 1 substituted by No 3 of 1968.
(Repealed by No 123 of 2003)
History
Sch 1 substituted for Sch 1 and 1A by No 123 of 2003.
Sch 1A inserted by No 23 of 1980.
(Repealed by No 45 of 2011)
History
Sch 2 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the USA Convention from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 2 formerly read:
SCHEDULE 2 - USA Convention
Section 3
CONVENTION BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOMEas amended by Sch 2A - the United States Protocol
ARTICLE 1 Personal Scope
(1)
Except as otherwise provided in this Convention, this Convention shall apply to persons who are residents of one or both of the Contracting States.
(2)
This Convention shall not restrict in any manner any exclusion, exemption, deduction, rebate, credit or other allowance accorded from time to time:
(a) by the laws of either Contracting State; or
(b) by any other agreement between the Contracting States.
(3)
Notwithstanding any provision of this Convention, except paragraph (4) of this Article, a Contracting State may tax its residents (as determined under Article 4 (Residence)) and individuals electing under its domestic law to be taxed as residents of that State, and by reason of citizenship may tax its citizens, as if this Convention had not entered into force. For this purpose, the term "citizen" shall, with respect to United States source income according to United States law relating to United States tax, include a former citizen or long-term resident whose loss of such status had as one of its principal purposes the avoidance of tax, but only for a period of 10 years following such loss.
(4)
The provisions of paragraph (3) shall not affect:
(a) the benefits conferred by a Contracting State under paragraph (2) of Article 9 (Associated Enterprises), paragraph (2) or (6) of Article 18 (Pensions, Annuities, Alimony and Child Support), Article 22 (Relief from Double Taxation), 23 (Non-Discrimination), 24 (Mutual Agreement Procedure) or paragraph (1) of Article 27 (Miscellaneous); or
(b) the benefits conferred by a Contracting State under Article 19 (Governmental Remuneration), 20 (Students) or 26 (Diplomatic and Consular Privileges) upon individuals who are neither citizens of, nor have immigrant status in, that State (in the case of benefits conferred by the United States), or who are not ordinarily resident in that State (in the case of benefits conferred by Australia).
HistoryArt 1 para (3) amended by Sch 2A (the United States Protocol) Art 1, by inserting "or long-term resident" after "include a former citizen" and substituting "such status" for "citizenship" in the last sentence. Article 13 of Sch 2A contains the following application provisions:
This Protocol, which shall form an integral part of the Convention, shall enter into force upon the exchange of instruments of ratification and its provisions shall have effect:
(a) in Australia:
(i) in respect of withholding tax on dividends, royalties and interest that is derived by a non-resident, in relation to income derived on or after the later of:
(A) the first day of the second month next following the date on which the Protocol enters into force; or
(B) 1 July, 2003;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the Protocol enters into force;...[ CCH Note: The protocol entered into force 12 May 2003.]
ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Convention shall apply are:
(a) in the United States: the Federal income taxes imposed by the Internal Revenue Code; and
(b) in Australia:
(i) the Australian income tax, including tax on capital gains; andimposed under the federal law of Australia.
(ii) the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources,
(2)
This Convention shall also apply to any identical or substantially similar taxes which are imposed by either Contracting State after the date of signature of this Convention in addition to, or in place of, the existing taxes. At the end of each calendar year, the competent authority of each Contracting State shall notify the competent authority of the other Contracting State of any substantial changes which have been made during that year in the laws of his State relating to the taxes to which this Convention applies or in the official interpretation of those laws or of this Convention.HistoryArt 2 para (1) substituted by Sch 2A (the United States Protocol) Art 2. For application provisions see note under Art 1. Para (1) formerly read:
(1)
The existing taxes to which this Convention shall apply are:
(a) in the United States: the Federal income taxes imposed by the Internal Revenue Code, but excluding the accumulated earnings tax and the personal holding company tax; and
(b) in Australia: the Australian income tax, including the additional tax upon the undistributed amount of the distributable income of a private company.
ARTICLE 3 General Definitions
(1)
For the purposes of this Convention, unless the context otherwise requires:
(a) the term "person" includes an individual, an estate of a deceased individual, a trust, a partnership, a company and any other body of persons;
(b) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(c) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of the United States, as the context requires;
(d) the term "international traffic" means any transport by a ship or aircraft, except where such transport is solely between places within a Contracting State;
(e) the term "competent authority" means:
(i) in the case of the United States: the Secretary of the Treasury or his delegate; and
(ii) in the case of Australia: the Commissioner of Taxation or his authorized representative;
(f) the terms "Contracting State", "one of the Contracting States" and "the other Contracting State" mean the United States or Australia, as the context requires;
(g)
(i) the term "United States corporation" means a corporation which, under United States law relating to United States tax, is a domestic corporation or an unincorporated entity treated as a domestic corporation, and which is not, under the law of Australia relating to Australian tax, a resident of Australia; and
(ii) the term "Australian corporation" means a company, as defined under the law of Australia relating to Australian tax, which, under that law, is a resident of Australia, and which is not, under United States law relating to United States tax, a domestic corporation or an unincorporated entity treated as a domestic corporation;
(h) the term "State" means any National State, whether or not one of the Contracting States;
(i) the term "United States tax" means tax imposed by the United States to which this Convention applies by virtue of Article 2 (Taxes Covered) and the term "Australian tax" means tax imposed by Australia to which this Convention applies by virtue of Article 2 (Taxes Covered) but neither term includes any amount which represents a penalty or interest imposed under the law of either Contracting State relating to United States tax or Australian tax;
(j)
(i) the term "United States" means the United States of America; and
(ii) when used in a geographical sense, the term "United States" means the states thereof and the District of Columbia and also includes:
(A) the territorial waters thereof; and
(B) the sea-bed and subsoil of the submarine areas adjacent to the coast thereof, but beyond the territorial waters, over which the United States exercises rights, in accordance with international law, for the purposes of exploration for, or exploitation of, the natural resources of those areas;
(k) the term "Australia" means the Commonwealth of Australia and, when used in a geographical sense, includes:
(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 Coral Sea Islands Territory; and
(vi) any area adjacent to the territorial limits of Australia or of the said Territories in respect of which there is for the time being in force, consistently with international law, a law of Australia or of a State or part of Australia or of a Territory aforesaid dealing with the exploitation of any of the natural resources of the sea-bed and subsoil of the continental shelf;
(l) the terms "resident of one of the Contracting States", and "resident of the other Contracting State" mean a resident of Australia or a resident of the United States, as the context requires.
(2)
As regards the application of this Convention by one of the Contracting States, any term not defined herein shall, unless the context otherwise requires, have the meaning which it has under the laws of that State relating to the taxes to which this Convention applies.HistoryArt 3 amended by No 100 of 2000.
ARTICLE 4 Residence
(1)
For the purposes of this Convention:
(a) a person is a resident of Australia if the person is:
(i) an Australian corporation; orprovided that, in relation to any income, a person who:
(ii) any other person (except a company as defined under the law of Australia relating to Australian tax) who, under that law, is a resident of Australia,
(iii) is subject to Australian tax on income which is from sources in Australia; orshall not be treated as a resident of Australia except to the extent that the income is subject to Australian tax as the income of a resident, either in the hands of that person or in the hands of a partner or beneficiary, or, if that income is exempt from Australian tax, is so exempt solely because it is subject to United States tax; and
(iv) is a partnership, an estate of a deceased individual or a trust (other than a trust that is a provident, benefit, superannuation or retirement fund, or that is established for public charitable purposes or for the purpose of enabling scientific research to be conducted by or in conjunction with a public university or public hospital, the income of which is exempt from tax under the law of Australia relating to Australian tax),
(b) a person is a resident of the United States if the person is:
(i) a United States corporation;
(ii) a United States citizen, other than a United States citizen who is a resident of a State other than Australia for the purposes of a double tax agreement between that State and Australia; or
(iii) any other person (except a corporation or unincorporated entity treated as a corporation for United States tax purposes) resident in the United States for purposes of its tax, provided that, in relation to any income derived by a partnership, an estate of a deceased individual or a trust, such person shall not be treated as a resident of the United States except to the extent that the income is subject to United States tax as the income of a resident, either in its hands or in the hands of a partner or beneficiary, or, if that income is exempt from United States tax, is exempt other than because such person, partner or beneficiary is not a United States person according to United States law relating to United States tax.
(2)
Where by application of paragraph (1) an individual is a resident of both Contracting States, he shall be deemed to be a resident of the State:
(a) in which he maintains his permanent home;
(b) if the provisions of sub-paragraph (a) do not apply, in which he has an habitual abode if he has his permanent home in both Contracting States or in neither of the Contracting States; or
(c) if the provisions of sub-paragraphs (a) and (b) do not apply, with which his personal and economic relations are closer if he has an habitual abode in both Contracting States or in neither of the Contracting States.For the purposes of this paragraph, in determining an individual's permanent home, regard shall be given to the place where the individual dwells with his family, and in determining the Contracting State with which an individual's personal and economic relations are closer, regard shall be given to his citizenship (if he is a citizen of one of the Contracting States).
(3)
An individual who is deemed to be a resident of one of the Contracting States for any year of income, or taxable year, as the case may be by reason of the provisions of paragraph (2) shall, for all purposes of this Convention, be deemed to be a resident only of that State for such year.HistoryArt 4 amended by Sch 2A (the United States Protocol) Art 3, by deleting "or" at the end of para (1)(b)(i), inserting a new para (1)(b)(ii) and renumbering the existing para (1)(b)(ii) as para (1)(b)(iii). For application provisions see note under Art 1.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Convention, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property;
(h) a building site or construction, assembly or installation project which exists for more than 9 months; and
(i) an installation, drilling rig or ship that, for an aggregate period of at least 6 months in any 24 month period, is used by an enterprise of one of the Contracting States in the other Contracting State for dredging or for or in connection with the exploration or exploitation of natural resources of the sea-bed and subsoil.
(3)
Notwithstanding paragraphs (1) and (2), an enterprise of one of the Contracting States shall not be regarded as having a permanent establishment solely as a result of one or more of the following:
(a) the use of facilities for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business for the purpose of activities which have a preparatory or auxiliary character, such as advertising or scientific research, for the enterprise;
(f) the maintenance of a building site or construction, assembly or installation project which does not exist for more than 9 months; or
(g) the use by that enterprise in the other Contracting State, of an installation, drilling rig or ship for dredging, or for or in connection with the exploration or exploitation of natural resources of the sea-bed and subsoil, provided that such use is not for an aggregate period of at least 6 months in any 24 month period.
(4)
Notwithstanding paragraphs (1) and (2), an enterprise of one of the Contracting States shall be deemed to have a permanent establishment in the other Contracting State if:
(a) it carries on business in that other State through a person, other than an agent of independent status to whom paragraph (5) applies, who has authority to conclude contracts on behalf of that enterprise and habitually exercises that authority in that other State, unless the activities of such person are limited to those mentioned in paragraph (3) which, if exercised through a fixed place of business, would not make that fixed place of business a permanent establishment under the provisions of that paragraph;
(b) it maintains substantial equipment for rental or other purposes within that other State (excluding equipment let under a hire-purchase agreement) for a period of more than 12 months;
(c) it engages in supervisory activities in that other State for more than 9 months in any 24 month period in connection with a building site or construction, assembly or installation project in that other State; or
(d) it has goods or merchandise belonging to it that:
(i) were purchased by it in that other State, and not subjected to prior substantial processing outside that other State; orand are, after such purchase or production, subjected to substantial processing in that other State by an enterprise where either enterprise participates directly or indirectly in the management, control or capital of the other enterprise, or where the same persons participate directly or indirectly in the management, control or capital of both enterprises.
(ii) were produced by it or on its behalf in that other State,
(5)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because that enterprise carries on business in that other State through a broker, general commission agent, or any other agent of independent status, where such broker or agent is acting in the ordinary course of his business as a broker, general commission agent or other agent of independent status.
(6)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.
(7)
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for purposes of this Convention whether there is a permanent establishment in a State other than one of the Contracting States and whether an enterprise other than an enterprise of one of the Contracting States has a permanent establishment in one of the Contracting States.
ARTICLE 6 Income from Real Property
(1)
Income from real property may be taxed by the Contracting State in which such real property is situated.
(2)
For the purposes of this Convention:
(i) a leasehold interest in land, whether or not improved, shall be regarded as real property situated where the land to which the interest relates is situated; and
(ii) rights to exploit or to explore for natural resources shall be regarded as real property situated where the natural resources are situated or sought.
ARTICLE 7 Business Profits
(1)
The business profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the business profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph (3), where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the business profits which it might be expected to make if it were a distinct and independent enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the business profits of a permanent establishment, there shall be allowed as deductions expenses which are reasonably connected with the profits (including executive and general administrative expenses) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No business profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
For the purposes of the preceding paragraphs of this Article, the business profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.
(6)
Where business profits include items of income which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article.
(7)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that, on the basis of the available information, the determination of the profits of the permanent establishment is consistent with the principles stated in this Article.
(8)
Nothing in this Article shall in a Contracting State prevent the operation in that State of its law relating specifically to the taxation of any person who carries on the business of any form of insurance (as long as that law as in effect on the date of signature of this Convention is not varied otherwise than in minor respects so as not to affect its general character).
(9)
Where:
(a) a resident of one of the Contracting States is beneficially entitled, whether directly or through one or more interposed fiscally transparent entities, to a share of the business profits of an enterprise carried on in the other Contracting State by the fiscally transparent entity (or, in the case of a trust, by the trustee of the trust estate); and
(b) in relation to that enterprise, that fiscally transparent entity (or trustee) would, in accordance with the principles of Article 5 (Permanent Establishment), have a permanent establishment in that other State, that enterprise carried on by that fiscally transparent entity (or trustee) shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated in that other State and that share of business profits shall be attributed to that permanent establishment.HistoryArt 7 amended by Sch 2A (the United States Protocol) Art 4, by inserting para (9). For application provisions see note under Art 1.
ARTICLE 8 Shipping and Air Transport
(1)
Profits derived by a resident of one of the Contracting States from the operation in international traffic of ships or aircraft shall be taxable only in that State. For the purposes of this Article, profits from the operation in international traffic of ships or aircraft include:
(a) profits from the lease on a full basis of ships or aircraft operated in international traffic by the lessee, provided that the lessor either operates ships or aircraft otherwise than solely between places in the other Contracting State or regularly leases ships or aircraft on a full basis; and
(b) profits from the lease of ships or aircraft on a bare boat basis, provided that such lease is merely incidental to the operation in international traffic of ships or aircraft by the lessor.
(2)
Profits of an enterprise of one of the Contracting States from the use, maintenance, or rental of containers (including trailers, barges, and related equipment for the transport of containers) used in international traffic shall be taxable only in that State.
(3)
The profits to which the provisions of paragraphs (1) and (2) apply include profits from the participation in a pool service or other profit sharing arrangement.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise taken on board in a Contracting State for discharge in that State shall not be treated as profits from the operation in international traffic of ships or aircraft and may be taxed in that State.HistoryArt 8 amended by Sch 2A (the United States Protocol) Art 5, by substituting para (1)(b) and substituting paras (2), (3) and (4) for paras (2) and (3). For application provisions see note under Art 1. Para (1)(b) and paras (2) and (3) formerly read:
(b) profits from the lease of ships or aircraft on a bare boat basis or of containers and related equipment, provided that such lease is merely incidental to the operation in international traffic of ships or aircraft by the lessor and the leased ships or aircraft are operated in international traffic, or the containers and related equipment are used in international traffic, by the lessee.
(2)
The provisions of paragraph (1) shall apply to the share of the profits from the operation in international traffic of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organization or in an international operating agency.
(3)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall not be treated as profits from the operation in international traffic of ships or aircraft and may be taxed in that State.
ARTICLE 9 Associated Enterprises
(1)
Where:
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph (1), in the profits of an enterprise of the other Contracting State and taxed accordingly, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the first-mentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Convention and the competent authorities of the Contracting States shall if necessary consult each other.
(3)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the income to be attributed to an enterprise, provided that, on the basis of the available information, the determination of that tax liability is consistent with the principles stated in this Article.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
However, those dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but:
(a) the tax charged shall not exceed 5 percent of the gross amount of the dividends, if the person beneficially entitled to those dividends is a company which holds directly at least 10 percent of the voting power in the company paying the dividends; and
(b) the tax charged shall not exceed 15 percent of the gross amount of the dividends to the extent to which those dividends are not within sub-paragraph (a),provided that if the relevant law in either Contracting State is varied after the effective date of this provision otherwise than in minor respects so as not to affect its general character, the Contracting States shall consult each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(3)
Notwithstanding the provisions of paragraph (2), dividends shall not be taxed in the Contracting State of which the company paying the dividends is a resident if the person who is beneficially entitled to the dividends is a company that is a resident of the other Contracting State thathas owned shares representing 80 percent or more of the voting power of the company paying the dividends for a 12-month period ending on the date the dividend is declared and:
(a) is a qualified person by reason of sub-paragraph (c) of paragraph (2) of Article 16 (Limitation on Benefits); or
(b) is entitled to benefits with respect to the dividends under paragraph (5) of that Article.
(4)
(a) Sub-paragraph (a) of paragraph (2) and paragraph (3) shall not apply in the case of dividends paid by a Regulated Investment Company (RIC) or a Real Estate Investment Trust (REIT).
(b) In the case of dividends paid by a RIC, sub-paragraph (b) of paragraph (2) shall apply.
(c) In the case of dividends paid by a REIT, sub-paragraph (b) of paragraph (2) shall apply only if:
(i) the person beneficially entitled to the dividends is an individual holding an interest of not more than 10 percent in the REIT;
(ii) the dividends are paid with respect to a class of stock that is publicly traded and the person beneficially entitled to the dividends holds an interest of not more than 5 percent of any class of the REIT's stock; or
(iii) the person beneficially entitled to the dividends holds an interest of not more than 10 percent in the REIT and the gross value of no single interest in real property held by the REIT exceeds 10 percent of the gross value of the REIT's total interest in real property.
(d) Notwithstanding sub-paragraph (c), sub-paragraph (b) of paragraph (2) shall apply with respect to dividends paid by a REIT to a listed Australian property trust ("LAPT"). However, if the responsible entity for the LAPT knows or has reason to know that one or more unitholders each owns 5 percent or more of the beneficial interests in the LAPT, each of such 5 percent or more unitholders shall, for purposes of this paragraph, be deemed to hold such proportion of the LAPT's direct interest in the REIT as equals that person's proportionate interest in the LAPT and shall be deemed to be beneficially entitled to the REIT dividends paid with respect thereto, and the provisions of sub-paragraph (c) shall apply to that person. For purposes of this paragraph, dividends paid with respect to REIT shares held by an LAPT shall be deemed to be paid with respect to a class of stock that is publicly traded. For these purposes, a "listed Australian property trust" means an Australian unit trust registered as a "Managed Investment Scheme" under the Australian Corporations Act in which the principal class of units is listed on a recognised stock exchange in Australia and regularly traded on one or more recognised stock exchanges (as defined in Article 16 (Limitation on Benefits)).
(5)
The above provisions of this Article shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 (Business Profits) or Article 14 (Independent Personal Services), as the case may be, shall apply.
(6)
The term "dividends" as used in this Article means income from shares, as well as other amounts which are subjected to the same taxation treatment as income from shares by the law of the State of which the company making the distribution is a resident for the purposes of its tax.
(7)
Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company - being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled - except insofar as the holding in respect of which such dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor may it impose tax on a company's undistributed profits, except as provided in paragraph (8), even if the dividends paid consist wholly or partly of profits or income arising in such other State.
(8)
A company which is a resident of one of the Contracting States and that has a permanent establishment in the other State or that is subject to tax in the other State on a net basis on its income or gains that may be taxed in the other State under Article 6 (Income from Real Property) or under paragraph (1) or (3) of Article 13 (Alienation of Property) may be subject in that other State to a tax in addition to the tax allowable under the other provisions of this Convention. Such tax, however, may be imposed on only the portion of the business profits of the company attributable to the permanent establishment and the portion of the income or gains referred to in the preceding sentence that is subject to tax under Article 6 (Income from Real Property) or under paragraph (1) or (3) of Article 13 (Alienation of Property) that, in the case of the United States, represents the dividend equivalent amount of such profits, income or gains and, in the case of Australia, is an amount that is analogous to the dividend equivalent amount. This paragraph shall not apply in the case of a company which:
(a) is a qualified person by reason of sub-paragraph (c) of paragraph (2) of Article 16 (Limitation on Benefits) of this Convention; or
(b) is entitled to benefits with respect to the dividends under paragraph (5) of that Article.
(9)
The tax referred to in paragraph (8) may not be imposed at a rate in excess of the rate specified in sub-paragraph (a) of paragraph (2).HistoryArt 10 substituted by Sch 2A (the United States Protocol) Art 6. For application provisions see note under Art 1. Art 10 formerly read:
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends.
(3)
The term 'dividends' in this Article means income from shares and other income assimilated to income from shares by the taxation law of the Contracting State of which the company making the distribution is a resident for the purposes of its tax.
(4)
The provisions of paragraph (2) shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State, being the State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 (Business Profits) or Article 14 (Independent Personal Services), as the case may be, shall apply.
(5)
Where a company is a resident of one of the Contracting States, the other Contracting State may not impose any tax on dividends paid by the company, except insofar as:
(a) a resident of that other State is beneficially entitled to the dividends;
(b) the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State; or
(c) that other State does not impose a tax of the kind described in paragraph (6) (excluding the accumulated earnings tax and the personal holding company tax imposed by the United States) and the dividends are paid out of profits attributable to one or more permanent establishments which such company had in that other State, provided that the gross income attributable to such permanent establishments constituted at least 50 per cent of such company's gross income from all sources.Where subparagraph (c) applies and subparagraphs (a) and (b) do not apply, any such tax shall not exceed 15 per cent of the dividends.
(6)
Nothing in this Convention shall be construed as preventing a Contracting State from imposing on the income of a company which is a resident of the other Contracting State, tax in addition to the taxes referred to in Article 2 in relation to the firstmentioned Contracting State which are payable by a company which is a resident of the firstmentioned State, provided that any such additional tax shall not exceed 15 per cent of the amount by which the taxable income of the firstmentioned company of a year of income exceeds the tax payable on that taxable income to the firstmentioned State. Any tax payable to a Contracting State on the undistributed profits of a company which is a resident of the other Contracting State shall be calculated as if that company were not liable to the additional tax referred to in this paragraph and had paid dividends of such amount that tax equal to the amount of that additional tax would have been payable on the dividends in accordance with paragraph (2) of this Article.
ARTICLE 11 Interest
(1)
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
However, that interest may also be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 percent of the gross amount of the interest.
(3)
Notwithstanding paragraph (2), interest arising in one of the Contracting States to which a resident of the other Contracting State is beneficially entitled may not be taxed in thefirst-mentioned State if:
(a) the interest is derived by one of the Contracting States or by a political or administrative sub-division or a local authority thereof, or by any other body exercising governmental functions in a Contracting State, or by a bank performing central banking functions in a Contracting State;
(b) the interest is derived by a financial institution which is unrelated to and dealing wholly independently with the payer. For the purposes of this Article, the term "financial institution" means a bank or other enterprise substantially deriving its profits by raising debt finance in the financial markets or by taking deposits at interest and using those funds in carrying on a business of providing finance.
(4)
(a) Notwithstanding paragraph (3), interest referred to in sub-paragraph (b) of that paragraph may be taxed in the State in which it arises at a rate not exceeding 10 percent of the gross amount of the interest if the interest is paid as part of an arrangement involving back-to-back loans or other arrangement that is economically equivalent and intended to have a similar effect to back-to-back loans.
(b) Nothing in this Article shall be construed as restricting, in any manner, the right of a Contracting State to apply any anti-avoidance provisions of its taxation law.
(5)
The term "interest" in this Article means interest from government securities or from bonds or debentures (including premiums attaching to such securities, bonds or debentures), whether or not secured by mortgage and whether or not carrying a right to participate in profits, interest from any other form of indebtedness, as well as income which is subjected to the same taxation treatment as income from money lent by the law of the Contracting State in which the income arises. Income dealt with in Article 10 (Dividends) and penalty charges for late payment shall not be regarded as interest for the purposes of this Article.
(6)
The provisions of paragraphs (1), (2), (3) and (4) shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the indebtedness in respect of which the interest is paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 (Business Profits) or Article 14 (Independent Personal Services), as the case may be, shall apply.
(7)
Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment or fixed base, then the interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(8)
Where, by reason of a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might reasonably have been expected to have been agreed upon by the payer and the person so entitled in the absence of that relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Convention.
(9)
Notwithstanding the provisions of paragraphs (1), (2), (3) and (4):
(a) interest that is paid by a resident of one of the Contracting States and that is determined with reference to the profits of the issuer or of one of its associated enterprises, as defined in sub-paragraph (a) or (b) of paragraph (1) of Article 9 (Associated Enterprises), being interest to which a resident of the other State is beneficially entitled, also may be taxed in the Contracting State in which it arises, and according to the laws of that State, at a rate not exceeding 15 percent of the gross amount of the interest; and
(b) interest that is paid with respect to the ownership interests in a person used for the securitisation of real estate mortgages or other assets, to the extent that the amount of interest paid exceeds the normal rate of return on publicly-traded debt instruments with a similar risk profile, may be taxed by each State in accordance with its domestic law.
(10)
Where interest expense is deductible in determining the profits, income or gains of a company resident in one of the Contracting States, being profits, income or gains which:
(a) are attributable to a permanent establishment of that company in the other Contracting State; or
(b) may be taxed in the other Contracting State under Article 6 (Income from Real Property) or paragraph (1) or (3) of Article 13 (Alienation of Property),and that interest expense exceeds the interest paid by that permanent establishment or paid with respect to the debt secured by real property located in the other Contracting State, the amount of that excess shall be deemed to be interest arising in that other Contracting State to which a resident of the first-mentioned Contracting State is beneficially entitled.
HistoryArt 11 substituted by Sch 2A (the United States Protocol) Art 7. For application provisions see note under Art 1. Art 11 formerly read:
ARTICLE 11 Interest
(1)
Interest from sources in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such interest may be taxed in the Contracting State in which it has its source, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
Paragraph (2) shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, has a permanent establishment in the other Contracting State or performs independent personal services in that other State from a fixed base situated therein and the indebtedness giving rise to the interest is effectively connected with such permanent establishment or fixed base. In such a case the provisions of Article 7 (Business Profits) or Article 14 (Independent Personal Services), as the case may be, shall apply.
(4)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Convention.
(5)
The term 'interest' as used in this Convention includes income which, under the taxation law of the Contracting State in which the income has its source, is assimilated to income from money lent.
(6)
A Contracting State may not impose any tax on interest paid by a resident of the other Contracting State, except insofar as:
(a) such interest has its source in the firstmentioned State, or is interest to which a resident of that State is beneficially entitled; or
(b) the indebtedness in respect of which the interest is paid is effectively connected with a permanent establishment or a fixed base of the beneficial owner of the interest situated in the firstmentioned State.
(7)
Interest shall be treated as income from sources in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether he is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to have its source in the State in which the permanent establishment or fixed base is situated.
ARTICLE 12 Royalties
(1)
Royalties from sources in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such royalties may be taxed in the Contracting State in which they have their source, and according to the law of that State, but the tax so charged shall not exceed 5 per cent of the gross amount of the royalties.
(3)
Paragraph (2) shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, has a permanent establishment in the other Contracting State or performs independent personal services in that other State from a fixed base situated therein, and the property or rights giving rise to the royalties are effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 (Business Profits) or Article 14 (Independent Personal Services), as the case may be, shall apply.
(4)
The term "royalties" in this Article means:
(a) payments or credits of any kind to the extent to which they are consideration for the use of or the right to use any:
(i) copyright, patent, design or model, plan, secret formula or process, trademark or other like property or right;
(ii) motion picture films; or
(iii) films or audio or video tapes or disks, or any other means of image or sound reproduction or transmission for use in connection with television, radio or other broadcasting;
(b) payments or credits of any kind to the extent to which they are consideration for:
(i) the supply of scientific, technical, industrial or commercial knowledge or information owned by any person;
(ii) the supply of any assistance of an ancillary and subsidiary nature furnished as a means of enabling the application or enjoyment of knowledge or information referred to in sub-paragraph (b)(i) or of any other property or right to which this Article applies; or
(iii) a total or partial forbearance in respect of the use or supply of any property or right described in this paragraph; or
(c) income derived from the sale, exchange or other disposition of any property or right described in this paragraph to the extent to which the amounts realized on such sale, exchange or other disposition are contingent on the productivity, use or further disposition of such property or right.
(5)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Convention.
(6)
(a) Royalties shall be treated as income from sources in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether he is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to have their source in the State in which the permanent establishment or fixed base is situated.
(b) Where subparagraph (a) does not operate to treat royalties as being from sources in one of the Contracting States, and the royalties relate to use or the right to use in one of the Contracting States of any property or right described in paragraph (4), the royalties shall be treated as income from sources in that State.HistoryArt 12 amended by Sch 2A (the United States Protocol) Art 8, by substituting "5" for "10" in para (2) and substituting para (4)(a). For application provisions see note under Art 1. Para (4)(a) formerly read:
(a) payments or credits of any kind to the extent to which they are consideration for the use of or the right to use any:
(i) copyright, patent, design or model, plan, secret formula or process, trade mark or other like property or right;
(ii) industrial, commercial or scientific equipment, other than equipment let under a hire purchase agreement;
(iii) motion picture films; or
(iv) films or video tapes for use in connection with television or tapes for use in connection with radio broadcasting;
ARTICLE 13 Alienation of Property
(1)
Income or gains derived by a resident of one of the Contracting States from the alienation or disposition of real property situated in the other Contracting State may be taxed in that other State.
(2)
For the purposes of this Article:
(a) the term "real property situated in the other Contracting State", where the United States is that other Contracting State, includes a United States real property interest, and real property referred to in Article 6 which is situated in the United States; and
(b) the term "real property", in the case of Australia, shall have the meaning which it has under the laws in force from time to time in Australia and, without limiting the foregoing, includes:
(i) real property referred to in Article 6;
(ii) shares or comparable interests in a company, the assets of which consist wholly or principally of real property situated in Australia; and
(iii) an interest in a partnership, trust or estate of a deceased individual, the assets of which consist wholly or principally of real property situated in Australia.
(3)
Income or gains from the alienation of property, other than real property, that forms part of the business property of a permanent establishment which an enterprise of one of the Contracting States has in the other Contracting State or pertains to a fixed base available in that other State to a resident of the first-mentioned State for the purpose of performing independent personal services, including income or gains from the alienation of that permanent establishment (alone or with the whole enterprise) or of that fixed base, may be taxed in that other State.
(4)
Income or gains derived by an enterprise of one of the Contracting States from the alienation of ships, aircraft or containers operated or used in international traffic or property, other than real property, pertaining to the operation or use of such ships, aircraft, or containers shall be taxable only in that State.
(5)
Where an individual who, upon ceasing to be a resident of one of the Contracting States, is treated under the taxation law of that State as having alienated any property and is taxed in that State by reason thereof, the individual may elect to be treated for the purposes of taxation in the other Contracting State as if the individual had, immediately before ceasing to be a resident of the first-mentioned State, alienated and re-acquired the property for an amount equal to its fair market value at that time.
(6)
An individual who elects, under the taxation law of a Contracting State, to defer taxation on income or gains relating to property which would otherwise be taxed in that State upon the individual ceasing to be a resident of that State for the purposes of its tax, shall, if the individual is a resident of the other State, be taxable on income or gains from the subsequent alienation of that property only in that other State.
(7)
Except as provided in the preceding paragraphs of this Article, each Contracting State may tax capital gains in accordance with the provisions of its domestic law.
(8)
For the purposes of this Article, real property consisting of shares in a company referred to in sub-paragraph (2)(b)(ii), and interests in a partnership, trust or estate referred to in sub-paragraph (2)(b)(iii), shall be deemed to be situated in Australia.HistoryArt 13 amended by Sch 2A (the United States Protocol) Art 9, by substituting paras (3), (4), (5), (6) and (7) for para (3) and renumbering para (4) as para (8). For application provisions see note under Art 1. Para (3) formerly read:
(3)
Income or gains derived by an enterprise of one of the Contracting States from the alienation of ships, aircraft or containers operated or used by it in international traffic shall, except to the extent to which that enterprise has been allowed depreciation in the other Contracting State in respect of those ships, aircraft or containers, be taxable only in that State, and income described in subparagraph (4)(c) of Article 12 (Royalties) shall be taxable only in accordance with the provisions of Article 12.
ARTICLE 14 Independent Personal Services
Income derived by an individual who is a resident of one of the Contracting States from the performance of personal services in an independent capacity shall be taxable only in that State unless such services are performed in the other Contracting State and:
(a) the individual is present in that other State for a period or periods aggregating more than 183 days in the taxable year or year of income of that other State; or
(b) the individual has a fixed base regularly available to him in that other State for the purpose of performing his activities, in which case so much of the income as is attributable to that fixed base may be taxed in such other State.ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 18 (Pensions, Annuities, Alimony and Child Support) and 19 (Governmental Remuneration), salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment or in respect of services performed as a director of a company shall be taxable only in that State unless the employment is exercised or the services performed in the other Contracting State. If the employment is so exercised or the services so performed, such remuneration as is derived from that exercise or performance may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State or in respect of services performed in the other Contracting State as a director of a company shall be taxable only in the first-mentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the taxable year or year of income of that other State;
(b) the remuneration is paid by, or on behalf of, an employer or company who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment, a fixed base or a trade or business which the employer or company has in that other State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that State.
ARTICLE 16 Limitation on Benefits
(1)
Except as otherwise provided in this Article, a resident of one of the Contracting States that derives income from the other Contracting State shall not be entitled to the benefits of this Convention otherwise accorded to residents of one of the Contracting States unless such resident is a "qualified person" as defined in paragraph (2).
(2)
A resident of one of the Contracting States shall be a qualified person for a taxable year if the resident is:
(a) an individual;
(b) that State, any political subdivision or local authority thereof or any agency or instrumentality of such State;
(c) a company, if:
(i) the principal class of its shares is listed on a recognized stock exchange specified in sub-paragraph (a) or (b) of paragraph (6) of this Article and is regularly traded on one or more recognized stock exchanges; or
(ii) at least 50 percent of the aggregate vote and value of the shares in the company is owned directly or indirectly by five or fewer companies entitled to benefits under clause (i) of this sub-paragraph, provided that, in the case of indirect ownership, each intermediate owner is a resident of either Contracting State;
(d) a person other than an individual or a company; if:
(i) the principal class of units in that person is listed or admitted to dealings on a recognized stock exchange specified in sub-paragraph (a) or (b) of paragraph (6) of this Article and is regularly traded on one or more of the recognized stock exchanges; or
(ii) the direct or indirect owners of at least 50 percent of the beneficial interests in that person are qualified persons by reason of clause (i) of sub-paragraph (c) or clause (i) of this sub-paragraph;
(e) an entity organised under the laws of one of the Contracting States and established and maintained in that State exclusively for a religious, charitable, educational, scientific, or other similar purpose, even if the entity is generally exempt from tax in that State;
(f) an entity organised under the laws of one of the Contracting States and established and maintained in that State to provide, pursuant to a plan, pensions or other similar benefits to employed and self-employed persons, even if the entity is generally exempt from tax in that State, provided that more than 50 percent of the entity's beneficiaries, members or participants are individuals resident in either Contracting State;
(g) a person other than an individual, if:
(i) on at least half the days of the taxable year persons that are qualified persons by reason of sub-paragraph (a), (b), (c)(i), or (d)(i) of this paragraph own, directly or indirectly, at least 50 percent of the aggregate vote and value of the shares or other beneficial interests in the person; and
(ii) less than 50 percent of the person's gross income for the taxable year is paid or accrued, directly or indirectly, to persons who are not residents of either Contracting State in the form of payments that are deductible for purposes of the taxes covered by this Convention in the person's State of residence (but not including arm's length payments in the ordinary course of business for services or tangible property and payments in respect of financial obligations to a bank, provided that where such a bank is not a resident of one of the Contracting States such payment is attributable to a permanent establishment of that bank located in one of the Contracting States); or
(h) a recognized headquarters company for a multinational corporate group. For purposes of this paragraph, a person shall be considered a recognized headquarters company if:
(i) it provides in its State of residence a substantial portion of the overall supervision and administration of a group of companies (which may be part of a larger group of companies), which may include, but cannot be principally, group financing;
(ii) the group of companies consists of corporations resident in, and engaged in an active business in, at least five countries (or groupings of countries), and the business activities carried on in each of the five countries (or groupings of countries) generate at least 10 percent of the gross income of the group;
(iii) the business activities carried on in any one country other than the Contracting State of residenceof the headquarters company generate less than 50 percent of the gross income of the group;
(iv) no more than 25 percent of its gross income is derived from the other Contracting State;
(v) it has, and exercises, independent discretionary authority to carry out the functions referred to in sub-paragraph (i);
(vi) it is subject to generally applicable rules of taxation in its country of residence; and
(vii) the income derived in the other Contracting State either is derived in connection with, or is incidental to, the active business referred to in sub-paragraph (ii).If the income requirements for being considered a recognized headquarters company (sub-paragraphs (ii), (iii), or (iv)) are not fulfilled, they will be deemed to be fulfilled if the required percentages are met when averaging the gross income of the preceding four years.
(3)
(a) A resident of one of the Contracting States will be entitled to the benefits of the Convention with respect to an item of income derived from the other State, regardless of whether the resident is a qualified person, if the resident is engaged in the active conduct of a trade or business in the first-mentioned State (other than the business of making or managing investments for the resident's own account, unless these activities are banking, insurance or securities activities carried on by a bank, insurance company or a registered, licensed or authorized securities dealer), and the income derived from the other Contracting State is derived in connection with, or is incidental to, that trade or business.
(b) If the resident or any of its associated enterprises carries on a trade or business activity in the other Contracting State which gives rise to an item of income, sub-paragraph (a) of this paragraph shall apply to such item only if the trade or business activity in the first-mentioned State is substantial in relation to the trade or business activity in the other State. Whether a trade or business activity is substantial for purposes of this paragraph will be determined based on all the facts and circumstances.
(c) In determining whether a person is "engaged in the active conduct of a trade or business" in a Contracting State under sub-paragraph (a) of this paragraph, activities conducted by a partnership in which that person is a partner and activities conducted by persons connected to such person shall be deemed to be conducted by such person. A person shall be connected to another if one possesses at least 50 percent of the beneficial interest in the other (or, in the case of a company, at least 50 percent of the aggregate vote and value of the company's shares or of the beneficial equity interest in the company) or another person possesses, directly or indirectly, at least 50 percent of the beneficial interest (or, in the case of a company, at least 50 percent of the aggregate vote and value of the company's shares or of the beneficial equity interest in the company) in each person. In any case, a person shall be considered to be connected to another if, based on all the relevant facts and circumstances, one has control of the other or both are under the control of the same person or persons.
(4)
Notwithstanding the preceding provisions of this Article, if a company that is a resident of one of the Contracting States, or a company that owns at least 50 percent of the aggregate vote or value of such a company, has outstanding a class of shares:
(a) which is subject to terms or other arrangements which entitle its holders to a portion of the income of the company derived from the other Contracting State that is larger than the portion such holders would receive absent such terms or arrangements ("the disproportionate part of the income"); and
(b) 50 percent or more of the voting power and value of which is owned by persons who are not qualified persons,the benefits of this Convention shall not apply to the disproportionate part of the income.
(5)
A resident of one of the Contracting States that is not a qualified person pursuant to the provisions of paragraph (2) of this Article shall, nevertheless, be granted benefits of the Convention if the competent authority of the other Contracting State determines, in accordance with the law of that other State, that the establishment, acquisition or maintenance of such person and the conduct of its operations did not have as one of its principal purposes the obtaining of benefits under the Convention.
(6)
For purposes of this Article the term "recognized stock exchange" means:
(a) the NASDAQ System owned by the National Association of Securities Dealers, Inc., and any stock exchange registered with the U.S. Securities and Exchange Commission as a national securities exchange under the U.S. Securities Exchange Act of 1934;
(b) the Australian Stock Exchange and any other Australian stock exchange recognized as such under Australian law; and
(c) any other stock exchange agreed upon by the competent authorities.
(7)
Nothing in this Article shall be construed as restricting, in any manner, the right of a Contracting State to apply any anti-avoidance provisions of its taxation law.HistoryArt 16 substituted by Sch 2A (the United States Protocol) Art 10. For application provisions see note under Art 1. Art 16 formerly read:
ARTICLE 16 Limitation on Benefits
(1)
A person (other than an individual) which is a resident of one of the Contracting States shall not be entitled under this Convention to relief from taxation in the other Contracting State unless:
(a) more than 75 per cent of the beneficial interest in such person (or in the case of a company, more than 75 per cent of the number of shares of each class of the company's shares) is owned, directly or indirectly, by any combination of one or more of:
(i) individuals who are residents of the United States;
(ii) citizens of the United States;
(iii) individuals who are residents of Australia;
(iv) companies as described in subparagraph (b); and
(v) the Contracting States;
(b) it is a company in whose principal class of shares there is substantial and regular trading on a recognized stock exchange in one of the Contracting States; or
(c) the establishment, acquisition and maintenance of such person and the conduct of its operations did not have as one of its principal purposes the purpose of obtaining benefits under the Convention.
(2)
For the purposes of subparagraph (1)(b), the term 'a recognized stock exchange' includes, in relation to the United States, the NASDAQ System owned by the National Association of Securities Dealers, Inc.
(3)
Where:
(a) income derived by a trustee is to be treated for the purposes of this Convention as income of a resident of one of the Contracting States; and
(b) the trustee derived the income in connection with a scheme a principal purpose of which was to obtain a benefit under this Convention,then, notwithstanding any other provision of this Convention, the Convention does not apply in relation to that income.
ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 (Independent Personal Services) and 15 (Dependent Personal Services), income derived by entertainers (such as theatrical, motion picture, radio or television artistes, musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised, except where the amount of the gross receipts derived by any such entertainer, including expenses reimbursed to him or borne on his behalf, from such activities does not exceed ten thousand United States dollars ($10,000) or its equivalent in Australian dollars for the taxable year or year of income concerned.
(2)
Where income in respect of activities exercised by an entertainer in his capacity as such accrues not to the entertainer but to another person, that income may, notwithstanding the provisions of Articles 7 (Business Profits), 14 (Independent Personal Services) and 15 (Dependent Personal Services), be taxed in the Contracting State in which the activities of the entertainer are exercised, unless it is established that neither the entertainer nor any person related to him participates directly or indirectly in any profits of such other person in any manner, including the receipt of deferred remuneration, bonuses, fees, dividends, partnership distributions or other distributions.
ARTICLE 18 Pensions, Annuities, Alimony and Child Support
(1)
Subject to the provisions of Article 19 (Governmental Remuneration), pensions and other similar remuneration paid to an individual who is a resident of one of the Contracting States in consideration of past employment shall be taxable only in that State.
(2)
Social security payments and other public pensions paid by one of the Contracting States to an individual who is a resident of the other Contracting State or a citizen of the United States shall be taxable only in the first-mentioned State.
(3)
Annuities paid to an individual who is a resident of one of the Contracting States shall be taxable only in that State.
(4)
The term "pensions and other similar remuneration", as used in this Article, means periodic payments made by reason of retirement or death, in consideration for services rendered, or by way of compensation paid after retirement for injuries received in connection with past employment.
(5)
The term "annuities", as used in this Article, means stated sums paid periodically at stated times during life, or during a specified or ascertainable number of years, under an obligation to make the payments in return for adequate and full consideration (other than services rendered or to be rendered).
(6)
Any alimony or other maintenance payments, including payments for the support of a minor child, arising in one of the Contracting States and paid to a resident of the other Contracting State, shall be taxable only in the first-mentioned State.
ARTICLE 19 Governmental Remuneration
Wages, salaries, and similar remuneration, including pensions, paid from funds of one of the Contracting States, of a state or other political subdivision thereof or of an agency or authority of any of the foregoing for labour or personal services performed as an employee of any of the above in the discharge of governmental functions to a citizen of that State shall be exempt from tax by the other Contracting State.ARTICLE 20 Students
Where a student, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State for the purpose of his full-time education, receives payments from sources outside that other State for the purpose of his maintenance or education, those payments shall be exempt from tax in that other State.ARTICLE 21 Other Income
(1)
Items of income of a resident of one of the Contracting States, wherever arising, not dealt with in the foregoing Articles of this Convention shall be taxable only in that State.
(2)
The provisions of paragraph (1) shall not apply to income, other than income from real property as defined in paragraph (2) of Article 6 (Income from Real Property), derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In that case the provisions of Article 7 (Business Profits) or Article 14 (Independent Personal Services), as the case may be, shall apply.
(3)
Notwithstanding the provisions of paragraphs (1) and (2), items of income of a resident of one of the Contracting States not dealt with in the foregoing Articles of this Convention from sources in the other Contracting State may also be taxed in the other Contracting State.HistoryArt 21 substituted by Sch 2A (the United States Protocol) Art 11. For application provisions see note under Art 1. Art 21 formerly read:
ARTICLE 21 Income Not Expressly Mentioned
(1)
Items of income of a resident of one of the Contracting States which are not expressly mentioned in the foregoing Articles of this Convention shall be taxable only in that State.
(2)
However, if such income is derived by a resident of one of the Contracting States from sources in the other Contracting State, such income may also be taxed in the State in which it has its source.
(3)
The provisions of paragraph (1) shall not apply to income derived by a resident of one of the Contracting States which is effectively connected with a permanent establishment situated in the other Contracting State. In such a case, the provisions of Article 7 (Business Profits) shall apply.
ARTICLE 22 Relief from Double Taxation
(1)
Subject to paragraph (4) and in accordance with the provisions and subject to the limitations of the law of the United States (as it may be amended from time to time without changing the general principle hereof), in the case of the United States, double taxation shall be avoided as follows:
(a) the United States shall allow to a resident or citizen of the United States as a credit against United States tax the appropriate amount of income tax paid to Australia; and
(b) in the case of a United States corporation owning at least 10 per cent of the voting stock of a company which is a resident of Australia from which it receives dividends in any taxable year, the United States shall also allow as a credit against United States tax the appropriate amount of income tax paid to Australia by that company with respect to the profits out of which such dividends are paid.Such appropriate amount shall be based upon the amount of income tax paid to Australia. For purposes of applying the United States credit in relation to income tax paid to Australia the taxes referred to in sub-paragraph (1)(b)(i) and paragraph (2) of Article 2 (Taxes Covered) shall be considered to be income taxes. No provision of this Convention relating to source of income shall apply in determining credits against United States tax for foreign taxes other than those referred to in sub-paragraph (1)(b)(i) and paragraph (2) of Article 2 (Taxes Covered).
(2)
Subject to paragraph (4), United States tax paid under the law of the United States and in accordance with this Convention, other than United States tax imposed in accordance with paragraph (3) of Article 1 (Personal Scope) solely by reason of citizenship or by reason of an election by an individual under United States domestic law to be taxed as a resident of the United States, in respect of income derived from sources in the United States by a person who, under Australian law relating to Australian tax, is a resident of Australia shall be allowed as a credit against Australian tax payable in respect of the income. The credit shall not exceed the amount of Australian tax payable on the income or any class thereof or on income from sources outside Australia. Subject to these general principles, the credit shall be in accordance with the provisions and subject to the limitations of the law of Australia as that law may be in force from time to time.
(3)
An Australian corporation that owns at least 10 per cent of the voting power in a United States corporation is, in accordance with the law of Australia as in force at the date of signature of this Convention, entitled to a rebate in its assessment, at the average rate of tax payable by it, in respect of dividends paid by the United States corporation that are included in the taxable income of the Australian corporation. However, should the law as so in force be amended so that the rebate in relation to the dividends ceases to be allowable under that law, Australia shall allow credit under paragraph (2) for the United States tax paid on the profits out of which the dividends are paid as well as for the United States tax paid on the dividends.
(4)
For the purposes of computing United States tax, where a United States citizen is a resident of Australia, the United States shall allow as a credit against United States tax the income tax paid to Australia after the credit referred to in paragraph (2). The credit so allowed against United States tax shall not reduce that portion of the United States tax that is creditable against Australian tax in accordance with paragraph (2).HistoryArt 22 para (1) amended by Sch 2A (the United States Protocol) Art 12, by substituting "sub-paragraph (1)(b)(i)" for "sub-paragraph (1)(b)" in each place it occurs. For application provisions see note under Art 1.
ARTICLE 23 Non-Discrimination
(1)
Each Contracting State in enacting tax measures shall ensure that:
(a) citizens of a Contracting State who are residents of the other Contracting State shall not be subjected in that other State to any taxation or any requirement connected therewith which is more burdensome than the taxation or connected requirements to which citizens of that other State who are residents of that other State in the same circumstances are or may be subjected;
(b) except where the provisions of paragraph (1) of Article 9 (Associated Enterprises), paragraph (4) of Article 11 (Interest) or paragraph (5) of Article 12 (Royalties) apply, interest, royalties and other disbursements paid by a resident of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable profits of the resident of the first-mentioned State, be deductible under the same conditions as if they had been paid to a resident of the first-mentioned State;
(c) a corporation of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned State to any taxation or any requirement connected therewith which is more burdensome than the taxation or connected requirements to which other similar corporations of the first-mentioned State in the same circumstances are or may be subjected; and
(d) the taxation on a permanent establishment which a resident of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on residents of that other State that carry on the same activities in the same circumstances.
(2)
Nothing in this Article relates to any provision of the taxation laws of a Contracting State:
(a) in force on the date of signature of this Convention;
(b) adopted after the date of signature of this Convention but which is substantially similar in general purpose or intent to a provision covered by subparagraph (a); or
(c) reasonably designed to prevent the avoidance or evasion of taxes;provided that, with respect to provisions covered by subparagraphs (b) or (c), such provisions (other than provisions in international agreements) do not discriminate between citizens or residents of the other Contracting State and those of any third State.
(3)
Without limiting by implication the interpretation of thisArticle, it is hereby declared that, except to the extent expressly so provided, nothing in the Article prevents a Contracting State from distinguishing in its taxation laws between residents and non-residents solely on the ground of their residence.
(4)
Where one of the Contracting States considers that the taxation measures of the other Contracting State infringe the principles set forth in this Article the Contracting States shall consult together in an endeavour to resolve the matter.
ARTICLE 24 Mutual Agreement Procedure
(1)
(a) Where a resident of one of the Contracting States considers that the action of one or both of the Contracting States results or will result for him in taxation not in accordance with this Convention, he may, notwithstanding the remedies provided by the domestic laws of those States, present his case to the competent authority of the Contracting State of which he is a resident or citizen. The case must be presented within three years from the first notification of that action.
(b) Should the claim be considered to have merit by the competent authority of the Contracting State to which the claim is made, that competent authority shall seek to come to an agreement with the competent authority of the other Contracting State with a view to the avoidance of taxation contrary to the provisions of this Convention. Any agreement reached shall be implemented notwithstanding any time limits or other procedural limitations in the domestic law of the Contracting States.
(2)
The competent authorities of the Contracting States shall seek to resolve by agreement any difficulties or doubts arising as to the application or interpretation of this Convention. In particular the competent authorities of the Contracting States may agree:
(a) to the same attribution of income, deductions, credits, or allowances of an enterprise of one of the Contracting States to its permanent establishment situated in the other Contracting State;
(b) to the same allocation of income, deductions, credits, or allowances between persons;
(c) to the same determination of the source of particular items of income;
(d) to the same meaning of any term used in this Convention; or
(e) to which of the Contracting States an individual described in subparagraph (2)(c) of Article 4 (Residence) has closer personal and economic relations.
(3)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of this Article.
ARTICLE 25 Exchange of Information
(1)
The competent authorities shall exchange such information as is necessary for carrying out the provisions of this Convention or for the prevention of fraud or for the administration of statutory provisions concerning taxes to which this Convention applies provided the information is of a class that can be obtained under the laws and administrative practices of each Contracting State with respect to its own taxes.
(2)
Any information so exchanged shall be treated as secret and shall not be disclosed to any persons other than those (including a Court or administrative body) concerned with the assessment, collection, administration or enforcement of, or with litigation with respect to, the taxes to which this Convention applies.
(3)
No information shall be exchanged which would be contrary to public policy.
(4)
If specifically requested by the competent authority of one of the Contracting States, the competent authority of the other Contracting State shall provide information under this Article in the form of copies of unedited original documents (including books, papers, statements, records, accounts or writings) to the same extent such documents can be obtained under the laws and administrative practices of that other State with respect to its own taxes.
(5)
Each of the Contracting States shall endeavour to collect on behalf of the other Contracting State amounts equal to such taxes imposed by the other State as will ensure that any exemption or reduction in rate of tax granted under this Convention by that other State shall not be enjoyed by persons not entitled to such benefits.
ARTICLE 26 Diplomatic and Consular Privileges
Nothing in this Convention shall affect diplomatic and consular privileges under the general rules of international law or under the provisions of special agreements.ARTICLE 27 Miscellaneous
(1)
(a) Income derived by a resident of the United States which, under this Convention, may be taxed in Australia shall for the purposes of the income tax law of Australia and of this Convention be deemed to be income from sources in Australia.
(b) Income derived by a resident of Australia which, under this Convention, may be taxed in the United States, other than income taxed by the United States in accordance with paragraph (3) of Article 1 (Personal Scope) solely by reason of citizenship or by reason of an election by an individual under United States domestic law to be taxed as a resident of the United States, shall for the purposes of paragraph (2) of Article 22 (Relief from Double Taxation) and of the income tax law of Australia be deemed to be income from sources in the United States.
(c) Where paragraph (4) of Article 22 (Relief from Double Taxation) applies, income referred to in that paragraph shall be deemed to have its source in Australia to the extent necessary to give effect to the provisions of that paragraph.
(2)
Any exemption from tax by one of the Contracting States provided for in Article 14 (Independent Personal Services), 15 (Dependent Personal Services), 17 (Entertainers) or 19 (Governmental Remuneration) shall be inapplicable to the extent that the income to which the exemption relates is not or, upon the application of the relevant Article of this Convention (prior to application of this paragraph), will not be subject to tax by the other Contracting State.
ARTICLE 28 Entry into Force
(1)
This Convention shall be subject to ratification in accordance with the applicable procedures of each Contracting State, and instruments of ratification shall be exchanged at Washington, D.C., as soon as possible.
(2)
The Convention shall enter into force upon the exchange of instruments of ratification and its provisions shall have effect:
(a) with respect to those dividends, interest and royalties to which Articles 10 (Dividends), 11 (Interest) and 12 (Royalties), respectively, apply and which are paid, credited or otherwise derived on or after the first day of the second month following the date on which the Convention enters into force; and
(b) with respect to all other income of a taxpayer, for the taxpayer's years of income or taxable years, as the case may be, commencing on or after the first day of the second month following the date on which the Convention enters into force.
(3)
Subject to paragraph (4), the Convention between the Government of the United States of America and the Government of the Commonwealth of Australia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income signed at Washington on May 14, 1953 (in this Article referred to as the 1953 Convention) shall cease to have effect with respect to taxes to which this Convention applies under paragraph (2).
(4)
The 1953 Convention shall terminate on the expiration of the last date on which it has effect in accordance with the foregoing provisions of this Article.
ARTICLE 29 Termination
(1)
This Convention shall remain in force until terminated by a Contracting State. Either Contracting State may terminate the Convention at any time after 5 years from the date on which the Convention enters into force, provided that at least 6 months prior notice of termination has been given through the diplomatic channel. In such event, the Convention shall cease to have effect:
(a) with respect to those dividends, interest and royalties to which Articles 10 (Dividends), 11 (Interest) and 12 (Royalties) respectively apply, and which are paid, credited or otherwise derived on or after the first day of January following the expiration of the 6 month period; and
(b) with respect to all other income of a taxpayer, for the taxpayer's years of income or taxable years, as the case may be, commencing on or after the first day of January following the expiration of the 6 month period.
(2)
Notwithstanding the provisions of paragraph (1), upon prior notice to be given through the diplomatic channel, the provisions of paragraph (2) of Article 18 (Pensions, Annuities, Alimony and Child Support) may be terminated by either Contracting State at any time after this Convention enters into force.
DONE in duplicate at Sydney this sixth day of August 1982.
JOHN HOWARD
FOR THE GOVERNMENT OF AUSTRALIAR.D. NESEN
FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA
Sch 2 substituted by No 57 of 1983.
(Repealed by No 45 of 2011)
History
Sch 2A repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the United States Protocol from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 2A formerly read:
SCHEDULE 2A - United States Protocol
Note: See section 3.
PROTOCOL AMENDING THE CONVENTION BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE UNITED STATES OF AMERICA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1
Article 1 of the Convention is amended by:
(a) inserting in the last sentence of paragraph (3) "or long-term resident" after "include a former citizen"; and
(b) by omitting in the last sentence of paragraph (3) "citizenship" and substituting "such status".ARTICLE 2
Article 2 of the Convention is amended by omitting paragraph (1) and substituting:
"(1)
The existing taxes to which this Convention shall apply are:
(a) in the United States: the Federal income taxes imposed by the Internal Revenue Code; and
(b) in Australia:
(i) the Australian income tax, including tax on capital gains; andimposed under the federal law of Australia."
(ii) the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources,ARTICLE 3
Article 4 of the Convention is amended by:
(a) deleting "or" at the end of sub-paragraph (1)(b)(i) and inserting after that sub-paragraph the following:
"(ii) a United States citizen, other than a United States citizen who is a resident of a State other than Australia for the purposes of a double tax agreement between that State and Australia; or"; and
(b) renumbering sub-paragraph (1)(b)(ii) as sub-paragraph (1)(b)(iii).ARTICLE 4
Article 7 of the Convention is amended by inserting:
"(9)
Where:
(a) a resident of one of the Contracting States is beneficially entitled, whether directly or through one or more interposed fiscally transparent entities, to a share of the business profits of an enterprise carried on in the other Contracting State by the fiscally transparent entity (or, in the case of a trust, by the trustee of the trust estate); and
(b) in relation to that enterprise, that fiscally transparent entity (or trustee) would, in accordance with the principles of Article 5 (Permanent Establishment), have a permanent establishment in that other State, that enterprise carried on by that fiscally transparent entity (or trustee) shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated in that other State and that share of business profits shall be attributed to that permanent establishment."ARTICLE 5
Article 8 of the Convention is amended by:
(a) omitting sub-paragraph (1)(b) and substituting:
"(b) profits from the lease of ships or aircraft on a bare boat basis, provided that such lease is merely incidental to the operation in international traffic of ships or aircraft by the lessor."; and
(b) omitting paragraphs (2) and (3) and substituting:
"(2)
Profits of an enterprise of one of the Contracting States from the use, maintenance, or rental of containers (including trailers, barges, and related equipment for the transport of containers) used in international traffic shall be taxable only in that State.
(3)
The profits to which the provisions of paragraphs (1) and (2) apply include profits from the participation in a pool service or other profit sharing arrangement.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise taken on board in a Contracting State for discharge in that State shall not be treated as profits from the operation in international traffic of ships or aircraft and may be taxed in that State."ARTICLE 6
Article 10 of the Convention is omitted and the following Article is substituted:"ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
However, those dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but:
(a) the tax charged shall not exceed 5 percent of the gross amount of the dividends, if the person beneficially entitled to those dividends is a company which holds directly at least 10 percent of the voting power in the company paying the dividends; and
(b) the tax charged shall not exceed 15 percent of the gross amount of the dividends to the extent to which those dividends are not within sub-paragraph (a),provided that if the relevant law in either Contracting State is varied after the effective date of this provision otherwise than in minor respects so as not to affect its general character, the Contracting States shall consult each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(3)
Notwithstanding the provisions of paragraph (2), dividends shall not be taxed in the Contracting State of which the company paying the dividends is a resident if the person who is beneficially entitled to the dividends is a company that is a resident of the other Contracting State that has owned shares representing 80 percent or more of the voting power of the company paying the dividends for a 12-month period ending on the date the dividend is declared and:
(a) is a qualified person by reason of sub-paragraph (c) of paragraph (2) of Article 16 (Limitation on Benefits); or
(b) is entitled to benefits with respect to the dividends under paragraph (5) of that Article.
(4)
(a) Sub-paragraph (a) of paragraph (2) and paragraph (3) shall not apply in the case of dividends paid by a Regulated Investment Company (RIC) or a Real Estate Investment Trust (REIT).
(b) In the case of dividends paid by a RIC, sub-paragraph (b) of paragraph (2) shall apply.
(c) In the case of dividends paid by a REIT, sub-paragraph (b) of paragraph (2) shall apply only if:
(i) the person beneficially entitled to the dividends is an individual holding an interest of not more than 10 percent in the REIT;
(ii) the dividends are paid with respect to a class of stock that is publicly traded and the person beneficially entitled to the dividends holds an interest of not more than 5 percent of any class of the REIT's stock; or
(iii) the person beneficially entitled to the dividends holds an interest of not more than 10 percent in the REIT and the gross value of no single interest in real property held by the REIT exceeds 10 percent of the gross value of the REIT's total interest in real property.
(d) Notwithstanding sub-paragraph (c), sub-paragraph (b) of paragraph (2) shall apply with respect to dividends paid by a REIT to a listed Australian property trust ("LAPT"). However, if the responsible entity for the LAPT knows or has reason to know that one or more unitholders each owns 5 percent or more of the beneficial interests in the LAPT, each of such 5 percent or more unitholders shall, for purposes of this paragraph, be deemed to hold such proportion of the LAPT's direct interest in the REIT as equals that person's proportionate interest in the LAPT and shall be deemed to be beneficially entitled to the REIT dividends paid with respect thereto, and the provisions of sub-paragraph (c) shall apply to that person. For purposes of this paragraph, dividends paid with respect to REIT shares held by an LAPT shall be deemed to be paid with respect to a class of stock that is publicly traded. For these purposes, a "listed Australian property trust" means an Australian unit trust registered as a "Managed Investment Scheme" under the Australian Corporations Act in which the principal class of units is listed on a recognized stock exchange in Australia and regularly traded on one or more recognized stock exchanges (as defined in Article 16 (Limitation on Benefits)).
(5)
The above provisions of this Article shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 (Business Profits) or Article 14 (Independent Personal Services), as the case may be, shall apply.
(6)
The term "dividends" as used in this Article means income from shares, as well as other amounts which are subjected to the same taxation treatment as income from shares by the law of the State of which the company making the distribution is a resident for the purposes of its tax.
(7)
Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company - being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled - except insofar as the holding in respect of which such dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor may it impose tax on a company's undistributed profits, except as provided in paragraph (8), even if the dividends paid consist wholly or partly of profits or income arising in such other State.
(8)
A company which is a resident of one of the Contracting States and that has a permanent establishment in the other State or that is subject to tax in the other State on a net basis on its income or gains that may be taxed in the other State under Article 6 (Income from Real Property) or under paragraph (1) or (3) of Article 13 (Alienation of Property) may be subject in that other State to a tax in addition to the tax allowable under the other provisions of this Convention. Such tax, however, may be imposed on only the portion of the business profits of the company attributable to the permanent establishment and the portion of the income or gains referred to in the preceding sentence that is subject to tax under Article 6 (Income from Real Property) or under paragraph (1) or (3) of Article 13 (Alienation of Property) that, in the case of the United States, represents the dividend equivalent amount of such profits, income or gains and, in the case of Australia, is an amount that is analogous to the dividend equivalent amount. This paragraph shall not apply in the case of a company which:
(a) is a qualified person by reason of sub-paragraph (c) of paragraph (2) of Article 16 (Limitation on Benefits) of this Convention; or
(b) is entitled to benefits with respect to the dividends under paragraph (5) of that Article.
(9)
The tax referred to in paragraph (8) may not be imposed at a rate in excess of the rate specified in sub-paragraph (a) of paragraph (2)."
ARTICLE 7
Article 11 of the Convention is omitted and the following Article is substituted:"ARTICLE 11 Interest
(1)
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
However, that interest may also be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 percent of the gross amount of the interest.
(3)
Notwithstanding paragraph (2), interest arising in one of the Contracting States to which a resident of the other Contracting State is beneficially entitled may not be taxed in the first-mentioned State if:
(a) the interest is derived by one of the Contracting States or by a political or administrative sub-division or a local authority thereof, or by any other body exercising governmental functions in a Contracting State, or by a bank performing central banking functions in a Contracting State;
(b) the interest is derived by a financial institution which is unrelated to and dealing wholly independently with the payer. For the purposes of this Article, the term "financial institution" means a bank or other enterprise substantially deriving its profits by raising debt finance in the financial markets or by taking deposits at interest and using those funds in carrying on a business of providing finance.
(4)
(a) Notwithstanding paragraph (3), interest referred to in sub-paragraph (b) of that paragraph may be taxed in the State in which it arises at a rate not exceeding 10 percent of the gross amount of the interest if the interest is paid as part of an arrangement involving back-to-back loans or other arrangement that is economically equivalent and intended to have a similar effect to back-to-back loans.
(b) Nothing in this Article shall be construed as restricting, in any manner, the right of a Contracting State to apply any anti-avoidance provisions of its taxation law.
(5)
The term "interest" in this Article means interest from government securities or from bonds or debentures (including premiums attaching to such securities, bonds or debentures), whether or not secured by mortgage and whether or not carrying a right to participate in profits, interest from any other form of indebtedness, as well as income which is subjected to the same taxation treatment as income from money lent by the law of the Contracting State in which the income arises. Income dealt with in Article 10 (Dividends) and penalty charges for late payment shall not be regarded as interest for the purposes of this Article.
(6)
The provisions of paragraphs (1), (2), (3) and (4) shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the indebtedness in respect of which the interest is paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 (Business Profits) or Article 14 (Independent Personal Services), as the case may be, shall apply.
(7)
Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment or fixed base, then the interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(8)
Where, by reason of a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might reasonably have been expected to have been agreed upon by the payer and the person so entitled in the absence of that relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Convention.
(9)
Notwithstanding the provisions of paragraphs (1), (2), (3) and (4):
(a) interest that is paid by a resident of one of the Contracting States and that is determined with reference to the profits of the issuer or of one of its associated enterprises, as defined in sub-paragraph (a) or (b) of paragraph (1) of Article 9 (Associated Enterprises), being interest to which a resident of the other State is beneficially entitled, also may be taxed in the Contracting State in which it arises, and according to the laws of that State, at a rate not exceeding 15 percent of the gross amount of the interest; and
(b) interest that is paid with respect to the ownership interests in a person used for the securitization of real estate mortgages or other assets, to the extent that the amount of interest paid exceeds the normal rate of return on publicly-traded debt instruments with a similar risk profile, may be taxed by each State in accordance with its domestic law.
(10)
Where interest expense is deductible in determining the profits, income or gains of a company resident in one ofthe Contracting States, being profits, income or gains which:
(a) are attributable to a permanent establishment of that company in the other Contracting State; or
(b) may be taxed in the other Contracting State under Article 6 (Income from Real Property) or paragraph (1) or (3) of Article 13 (Alienation of Property),and that interest expense exceeds the interest paid by that permanent establishment or paid with respect to the debt secured by real property located in the other Contracting State, the amount of that excess shall be deemed to be interest arising in that other Contracting State to which a resident of the first-mentioned Contracting State is beneficially entitled."
ARTICLE 8
Article 12 of the Convention is amended by:
(a) omitting "10" and substituting "5" in paragraph (2); and
(b) omitting sub-paragraph (a) of paragraph (4) and substituting:
"(a) payments or credits of any kind to the extent to which they are consideration for the use of or the right to use any:
(i) copyright, patent, design or model, plan, secret formula or process, trademark or other like property or right;
(ii) motion picture films; or
(iii) films or audio or video tapes or disks, or any other means of image or sound reproduction or transmission for use in connection with television, radio or other broadcasting;".ARTICLE 9
Article 13 of the Convention is amended by:
(a) omitting paragraph (3) and substituting:; and"(3) Income or gains from the alienation of property, other than real property, that forms part of the business property of a permanent establishment which an enterprise of one of the Contracting States has in the other Contracting State or pertains to a fixed base available in that other State to a resident of the first-mentioned State for the purpose of performing independent personal services, including income or gains from the alienation of that permanent establishment (alone or with the whole enterprise) or of that fixed base, may be taxed in that other State.
(4) Income or gains derived by an enterprise of one of the Contracting States from the alienation of ships, aircraft or containers operated or used in international traffic or property, other than real property, pertaining to the operation or use of such ships, aircraft, or containers shall be taxable only in that State.
(5) Where an individual who, upon ceasing to be a resident of one of the Contracting States, is treated under the taxation law of that State as having alienated any property and is taxed in that State by reason thereof, the individual may elect to be treated for the purposes of taxation in the other Contracting State as if the individual had, immediately before ceasing to be a resident of the first-mentioned State, alienated and re-acquired the property for an amount equal to its fair market value at that time.
(6) An individual who elects, under the taxation law of a Contracting State, to defer taxation on income or gains relating to property which would otherwise be taxed in that State upon the individual ceasing to be a resident of that State for the purposes of its tax, shall, if the individual is a resident of the other State, be taxable on income or gains from the subsequent alienation of that property only in that other State.
(7) Except as provided in the preceding paragraphs of this Article, each Contracting State may tax capital gains in accordance with the provisions of its domestic law."
(b) renumbering paragraph (4) as paragraph (8).ARTICLE 10
Article 16 of the Convention is omitted and the following Article is substituted:"ARTICLE 16 Limitation on Benefits
(1)
Except as otherwise provided in this Article, a resident of one of the Contracting States that derives income from the other Contracting State shall not be entitled to the benefits of this Convention otherwise accorded to residents of one of the Contracting States unless such resident is a "qualified person" as defined in paragraph (2).
(2)
A resident of one of the Contracting States shall be a qualified person for a taxable year if the resident is:
(a) an individual;
(b) that State, any political subdivision or local authority thereof or any agency or instrumentality of such State;
(c) a company, if:
(i) the principal class of its shares is listed on a recognized stock exchange specified in sub-paragraph (a) or (b) of paragraph (6) of this Article and is regularly traded on one or more recognized stock exchanges; or
(ii) at least 50 percent of the aggregate vote and value of the shares in the company is owned directly or indirectly by five or fewer companies entitled to benefits under clause (i) of this sub-paragraph, provided that, in the case of indirect ownership, each intermediate owner is a resident of either Contracting State;
(d) a person other than an individual or a company, if:
(i) the principal class of units in that person is listed or admitted to dealings on a recognized stock exchange specified in sub-paragraph (a) or (b) of paragraph (6) of this Article and is regularly traded on one or more of the recognized stock exchanges; or
(ii) the direct or indirect owners of at least 50 percent of the beneficial interests in that person are qualified persons by reason of clause (i) of sub-paragraph (c) or clause (i) of this sub-paragraph;
(e) an entity organized under the laws of one of the Contracting States and established and maintained in that State exclusively for a religious, charitable, educational, scientific, or other similar purpose, even if the entity is generally exempt from tax in that State;
(f) an entity organized under the laws of one of the Contracting States and established and maintained in that State to provide, pursuant to a plan, pensions or other similar benefits to employed and self-employed persons, even if the entity is generally exempt from tax in that State, provided that more than 50 percent of the entity's beneficiaries, members or participants are individuals resident in either Contracting State;
(g) a person other than an individual, if:
(i) on at least half the days of the taxable year persons that are qualified persons by reason of sub-paragraph (a), (b), (c)(i), or (d)(i) of this paragraph own, directly or indirectly, at least 50 percent of the aggregate vote and value of the shares or other beneficial interests in the person; and
(ii) less than 50 percent of the person's gross income for the taxable year is paid or accrued, directly or indirectly, to persons who are not residents of either Contracting State in the form of payments that are deductible for purposes of the taxes covered by this Convention in the person's State of residence (but not including arm's length payments in the ordinary course of business for services or tangible property and payments in respect of financial obligations to a bank, provided that where such a bank is not a resident of one of the Contracting States such payment is attributable to a permanent establishment of that bank located in one of the Contracting States); or
(h) a recognized headquarters company for a multinational corporate group. For purposes of this paragraph, a person shall be considered a recognized headquarters company if:
(i) it provides in its State of residence a substantial portion of the overall supervision and administration of a group of companies (which may be part of a larger group of companies), which may include, but cannot be principally, group financing;
(ii) the group of companies consists of corporations resident in, and engaged in an active business in, at least five countries (or groupings of countries), and the business activities carried on in each of the five countries (or groupings of countries) generate at least 10 percent of the gross income of the group;
(iii) the business activities carried on in any one country other than the Contracting State of residence of the headquarters company generate less than 50 percent of the gross income of the group;
(iv) no more than 25 percent of its gross income is derived from the other Contracting State;
(v) it has, and exercises, independent discretionary authority to carry out the functions referred to in sub-paragraph (i);
(vi) it is subject to generally applicable rules of taxation in its country of residence; andIf the income requirements for being considered a recognized headquarters company (sub-paragraphs (ii), (iii), or (iv)) are not fulfilled, they will be deemed to be fulfilled if the required percentages are met when averaging the gross income of the preceding four years.
(vii) the income derived in the other Contracting State either is derived in connection with, or is incidental to, the active business referred to in sub-paragraph (ii).
(3)
(a) A resident of one of the Contracting States will be entitled to the benefits of the Convention with respect to an item of income derived from the other State, regardless of whether the resident is a qualified person, if the resident is engaged in the active conduct of a trade or business in the first-mentioned State (other than the business of making or managing investments for the resident's own account, unless these activities are banking, insurance or securities activities carried on by a bank, insurance company or a registered, licensed or authorized securities dealer), and the income derived from the other Contracting State is derived in connection with, or is incidental to, that trade or business.
(b) If the resident or any of its associated enterprises carries on a trade or business activity in the other Contracting State which gives rise to an item of income, sub-paragraph (a) of this paragraph shall apply to such item only if the trade or business activity in the first-mentioned State is substantial in relation to the trade or business activity in the other State. Whether a trade or business activity is substantial for purposes of this paragraph will be determined based on all the facts and circumstances.
(c) In determining whether a person is "engaged in the active conduct of a trade or business" in a Contracting State under sub-paragraph (a) of this paragraph, activities conducted by a partnership in which that person is a partner and activities conducted by persons connected to such person shall be deemed to be conducted by such person. A person shall be connected to another if one possesses at least 50 percent of the beneficial interest in the other (or, in the case of a company, at least 50 percent of the aggregate vote and value of the company's shares or of the beneficial equity interest in the company) or another person possesses, directly or indirectly, at least 50 percent of the beneficial interest (or, in the case of a company, at least 50 percent of the aggregate vote and value of the company's shares or of the beneficial equity interest in the company) in each person. In any case, a person shall be considered to be connected to another if, based on all the relevant facts and circumstances, one has control of the other or bothare under the control of the same person or persons.
(4)
Notwithstanding the preceding provisions of this Article, if a company that is a resident of one of the Contracting States, or a company that owns at least 50 percent of the aggregate vote or value of such a company, has outstanding a class of shares:
(a) which is subject to terms or other arrangements which entitle its holders to a portion of the income of the company derived from the other Contracting State that is larger than the portion such holders would receive absent such terms or arrangements ("the disproportionate part of the income"); and
(b) 50 percent or more of the voting power and value of which is owned by persons who are not qualified persons,the benefits of this Convention shall not apply to the disproportionate part of the income.
(5)
A resident of one of the Contracting States that is not a qualified person pursuant to the provisions of paragraph (2) of this Article shall, nevertheless, be granted benefits of the Convention if the competent authority of the other Contracting State determines, in accordance with the law of that other State, that the establishment, acquisition or maintenance of such person and the conduct of its operations did not have as one of its principal purposes the obtaining of benefits under the Convention.
(6)
For purposes of this Article the term "recognized stock exchange" means:
(a) the NASDAQ System owned by the National Association of Securities Dealers, Inc., and any stock exchange registered with the U.S. Securities and Exchange Commission as a national securities exchange under the U.S. Securities Exchange Act of 1934;
(b) the Australian Stock Exchange and any other Australian stock exchange recognized as such under Australian law; and
(c) any other stock exchange agreed upon by the competent authorities.
(7)
Nothing in this Article shall be construed as restricting, in any manner, the right of a Contracting State to apply any anti-avoidance provisions of its taxation law."
ARTICLE 11
Article 21 of the Convention is omitted and the following Article is substituted:"ARTICLE 21 Other Income
(1)
Items of income of a resident of one of the Contracting States, wherever arising, not dealt with in the foregoing Articles of this Convention shall be taxable only in that State.
(2)
The provisions of paragraph (1) shall not apply to income, other than income from real property as defined in paragraph (2) of Article 6 (Income from Real Property), derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In that case the provisions of Article 7 (Business Profits) or Article 14 (Independent Personal Services), as the case may be, shall apply.
(3)
Notwithstanding the provisions of paragraphs (1) and (2), items of income of a resident of one of the Contracting States not dealt with in the foregoing Articles of this Convention from sources in the other Contracting State may also be taxed in the other Contracting State."
ARTICLE 12
Article 22 of the Convention is amended by omitting in paragraph (1) "sub-paragraph (1)(b)" and substituting "sub-paragraph (1)(b)(i)" in each place it occurs.ARTICLE 13
(1)
This Protocol shall be subject to ratification in accordance with the applicable procedures of each Contracting State, and instruments of ratification shall be exchanged as soon as possible.
(2)
This Protocol, which shall form an integral part of the Convention, shall enter into force upon the exchange of instruments of ratification and its provisions shall have effect:
(a) in Australia:
(i) in respect of withholding tax on dividends, royalties and interest that is derived by a non-resident, in relation to income derived on or after the later of:
(A) the first day of the second month next following the date on which the Protocol enters into force; or
(B) 1 July, 2003;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the Protocol enters into force; and
(b) in the United States:
(i) in respect of withholding tax on dividends, royalties and interest that is derived by a non-resident, in relation to income derived on or after the later of:
(A) the first day of the second month next following the date on which the Protocol enters into force; or
(B) 1 July, 2003;
(ii) in respect of other taxes, for taxable periods beginning on or after 1 January in the calendar year next following that in which the Protocol enters into force.
(3)
Notwithstanding paragraph (2), Article 6 of this Protocol shall not apply to dividends paid by a REIT if the person beneficially entitled to the dividends is an LAPT (as defined in paragraph (4) of Article 10 (Dividends) of the Convention as amended by this Protocol) and the shares in respect of which the dividends are paid were:
(a) owned by the LAPT on March 26, 2001;
(b) acquired by the LAPT pursuant to a binding contract entered into on or before March 26, 2001; or
(c) acquired by the LAPT pursuant to a reinvestment of dividends (ordinary or capital) with respect to such shares.In such case, the provisions of Article 10 (Dividends), as it was on March 26, 2001, shall apply.
IN WITNESS WHEREOF the undersigned, being duly authorized, have signed this Protocol.
DONE in duplicate at Canberra, this twenty-seventh day of September 2001.
FOR THE GOVERNMENT OF AUSTRALIA:
PETER COSTELLO
[Signatures omitted]FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA:
J THOMAS SCHIEFFER
Sch 2A inserted by No 59 of 2002.
(Repealed by No 45 of 2011)
History
Sch 3 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Canadian Convention from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 3 formerly read:
SCHEDULE 3 - Canadian Convention
Section 3
CONVENTION BETWEEN AUSTRALIA AND CANADA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOMEas amended by Sch 3A - the Canadian Protocol
CHAPTER I
ARTICLE 1 Personal Scope
SCOPE OF THE CONVENTION
This Convention shall apply to persons who are residents of one or both of the Contracting States. ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Convention shall apply are-
(a) in the case of Australia:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of Australia;
(b) in the case of Canada:
the income taxes imposed by the Government of Canada under the Income Tax Act.
(2)
This Convention shall apply also to any identical or substantially similar taxes which are imposed under the federal law of Australia or the law of Canada after the date of signature of this Convention in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in the law of their respective States relating to the taxes to which this Convention applies within a reasonable period of time after those changes.HistoryArt 2 substituted by Sch 3A (the Canadian Protocol) Art 1.
CHAPTER II
ARTICLE 3 General Definitions
DEFINITIONS
(1)
In this Convention, 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 McDonalds Islands; andand 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 the exploitation of any of the natural resources of the seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "Canada" used in a geographical sense, means the territory of Canada, including any area beyond the territorial waters of Canada which is an area where Canada may, in accordance with its national legislation and international law, exercise rights with respect to the seabed and sub-soil and their natural resources;
(c) the terms "Contracting State, one of the Contracting States" and "other Contracting State" mean Australia or Canada, as the context requires;
(d) the term "person" includes an individual, an estate, a trust, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is assimilated to a body corporate for tax purposes; in French, the term "société" also means a "corporation" within the meaning of Canadian Law;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean respectively an enterprise carried on by a resident of one of the Contracting States and an enterprise carried on by a resident of the other Contracting State;
(g) the term "tax" means Australian tax or Canadian tax, as the context requires;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Convention applies by virtue of Article 2;
(i) the term "Canadian tax" means tax imposed by Canada, being tax to which this Convention applies by virtue of Article 2;
(j) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or his authorized representative, and in the case of Canada, the Minister of National Revenue or his authorized representative;
(k) the term "international traffic" means any voyage of a ship or aircraft operated by an enterprise of a Contracting State to transport passengers or property except where the principal purpose of the voyage is to transport passengers or property between places within the other Contracting State.
(2)
In this Convention, the terms "Australian tax" and "Canadian tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes to which this Convention applies by virtue of Article 2.
(3)
As regards the application of this Convention at any time by a Contracting State, 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 State concerning the taxes to which the Convention applies, any meaning under the applicable tax law of that State prevailing over a meaning given to the term under other law of that State.HistoryArt 3 amended by Sch 3A (the Canadian Protocol) Art 2.
ARTICLE 4 Residence
(1)
Subject to paragraph (2), for the purposes of this Convention, a person is a resident of a Contracting State if that person is a resident of that State for the purposes of its tax. A Contracting State or any political subdivision or local authority thereof or any agency or instrumentality of any such State, subdivision or authority is also a resident of that State for the purposes of this Convention.
(2)
A person is not a resident of a Contracting State for the purposes of this Convention if the person is liable to tax in that State in respect only of income from sources in that State.
(3)
Where by reason of the provisions of paragraph (1) an individual is a resident of both Contracting States, then his status shall be determined in accordance with the following rules:
(a) he shall be deemed to be a resident solely of the Contracting State in which he has a permanent home available to him;
(b) if he has a permanent home available to him in both Contracting States, or if he does not have a permanent home available to him in either of them, he shall be deemed to be a resident solely of the Contracting State with which his personal and economic relations are the closer.
(4)
Where by reason of the provisions of paragraph (1) a person other than an individual is a resident of both Contracting States, then the person's status shall be determined as follows:
(a) it shall be deemed to be a resident of the Contracting State in which it is incorporated or otherwise constituted;
(b) if it is not incorporated or otherwise constituted in either of the Contracting States, it shall be deemed to be a resident of the Contracting State in which its place of effective management is situated.HistoryArt 4 amended by Sch 3A (the Canadian Protocol) Art 3.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Convention, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" includes especially-
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, quarry or other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property;
(h) a building site or construction, installation or assembly project which exists for more than twelve months.
(3)
An enterprise shall not be deemed to have a permanent establishment merely by reason of-
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(4)
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if-
(a) it carries on supervisory activities in that State for more than twelve months in connection with a building site, or a construction, installation or assembly project which is being undertaken in that State; or
(b) substantial equipment is being used in that State by, for or under contract with the enterprise other than in connection with a building site or construction, installation or assembly project of the enterprise.
(5)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (6) applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if-
(a) he has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless his activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting, he manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
(6)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of his business as such a broker or agent.
(7)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise) shall not of itself make either company a permanent establishment of the other.
(8)
The principles set forth in paragraphs (1) to (7) inclusive shall be applied in determining for the purposes of this Convention whether there is a permanent establishment outside both Contracting States and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.HistoryArt 5 amended by Sch 3A (the Canadian Protocol) Art 4.
CHAPTER III
ARTICLE 6 Income from Real Property
TAXATION OF INCOME
(1)
Income from real property may be taxed in the Contracting State in which the real property is situated.
(2)
For the purposes of this Convention, the term "real property" in relation to a Contracting State, shall have the meaning which it has under the law of that State and shall include:
(a) a lease of land and any other interest in or over land, whether improved or not, including a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine those deposits or resources; and
(b) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources.
(3)
Any interest or right referred to in paragraph (2) shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
(4)
The provisions of paragraphs (1) and (3) shall also apply to the income from real property of an enterprise and to income from real property used for the performance of independent personal services.HistoryArt 6 substituted by Sch 3A (the Canadian Protocol) Art 5.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on or has carried on business as aforesaid, the profits of the enterprise may be taxed in the other State, but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph (3), where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
If the information available to the competent authority of a Contracting State is inadequate to determine the profits to be attributed to the permanent establishment of an enterprise, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
(6)
Where profits include items which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article.
(7)
Nothing in this Article shall affect the operation of any law of a Contracting State relating specifically to taxation of any person who carries on a business of any form of insurance, provided that if the law in force in either Contracting State at the date of signature of this Convention is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(8)
Where:
(a) a resident of Canada is beneficially entitled, whether directly or through one or more interposed trusts, to a share of the business profits of an enterprise carried on in Australia by the trustee of a trust other than a trust which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in Australia,the enterprise carried on by the trustee shall be deemed to be a business carried on in Australia by that resident through a permanent establishment situated in Australia and that share of business profits shall be attributable to that permanent establishment.
HistoryArt 7 amended by Sch 3A (the Canadian Protocol) Art 6.
ARTICLE 8 Shipping and Air Transport
(1)
Profits from the operation of ships or aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1), such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
(3)
The provisions of paragraphs (1) and (2) shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organization or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise taken on board in a Contracting State for discharge at a place in that State shall be treated as profits from operations confined solely to places in that State.HistoryArt 8 amended by Sch 3A (the Canadian Protocol) Art 7.
ARTICLE 9 Associated Enterprises
(1)
Where-
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
If the information available to the competent authority of a Contracting State is inadequate to determine the profits to be attributed to an enterprise, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person, provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
(3)
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph (1) or (2), in the profits of an enterprise of the other Contracting State and taxed accordingly, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned State shall, subject to paragraph (4), make an appropriate adjustment to the amount of tax charged on those profits in the first-mentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Convention in relation to the nature of the income, and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
(4)
The provisions of paragraph (3) relating to an appropriate adjustment are not applicable after the expiration of six years from the end of the year of income or taxation year in respect of which a Contracting State has charged to tax the profits to which the adjustment would relate.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
However, those dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed:
(a)
(i) in the case of dividends paid by a company that is a resident of Australia for the purposes of its tax, 5 per cent of the gross amount of the dividends, to the extent to which the dividends have been fully franked in accordance with the law of Australia, if a company that holds directly at least 10 per cent of the voting power of the company paying the dividends is beneficially entitled to those dividends; and
(ii) in the case of dividends paid by a company that is a resident of Canada for the purposes of its tax, except in the case of dividends paid by a non-resident-owned investment corporation that is a resident of Canada for the purposes of its tax, 5 per cent of the gross amount of the dividends if a company that controls directly or indirectly at least 10 per cent of the voting power in the company paying the dividends is beneficially entitled to those dividends; and
(b) 15 per cent of the gross amount of the dividends in all other cases,and if the relevant law of either Contracting State is varied in a manner that bears upon this provision, otherwise than in minor respects so as not to affect its general character, the Contracting States shall consult each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(3)
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State. Provided that this paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Canada for the purposes of Canadian tax.
(4)
The term "dividends" as used in this Article means income from shares, as well as other amounts which are subjected to the same taxation treatment as income from shares by the law of the State of which the company making the distribution is a resident for the purposes of its tax.
(5)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business through a permanent establishment situated in the other Contracting State, or performs professional services from a fixed base situated in that other State, being the State of which the company paying the dividends is a resident and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In such a case, the provisions of Article 7 or 14, as the case may be, shall apply.
(6)
Canada may impose, on the earnings attributable to a permanent establishment in Canada of a company which is a resident of Australia or on the earnings of such company attributable to the alienation of real property situated in Canada where the company is carrying on a trade in real property, a tax (in this paragraph referred to as a "branch tax") in addition to the tax that would be chargeable on the earnings of a company that is a resident of Canada, except that any branch tax so imposed shall not exceed 5 per cent of the amount of such earnings that have not been subjected to such branch tax in previous taxation years. For the purposes of this provision, the term "earnings" means the earnings attributable to the alienation of such real property situated in Canada as may be taxed by Canada under the provisions of Article 6 or paragraph (1) of Article 13, and the profits, including any gains, attributable to a permanent establishment in Canada in a year and previous years after deducting therefrom all other taxes, other than the branch tax referred to herein, imposed on such profits in Canada.
(7)
Australia may impose an income tax (in this paragraph called a "branch profits tax") on the reduced taxable income of a company that is a resident of Canada in addition to the income tax (in this paragraph called "the general income tax") payable by the company in respect of its taxable income; provided that any branch profits tax so imposed in respect of a year of income shall not exceed 5 per cent of the amount by which the reduced taxable income of that year of income exceeds the general income tax payable in respect of the reduced taxable income of that year of income.HistoryArt 10 amended by Sch 3A (the Canadian Protocol) Art 8.
ARTICLE 11 Interest
(1)
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to interest by the taxation law of the Contracting State in which the income arises.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business through a permanent establishment situated in the other Contracting State, or performs professional services from a fixed base situated in that other State, being the State in which the interest arises, and the indebtedness giving rise to the interest is effectively connected with that permanent establishment or fixed base. In such a case, the provisions of Article 7 or 14, as the case may be, shall apply.
(5)
Interest shall be deemed to arise in a Contracting State when the payer is that Contracting State itself or a political sub-division or a local authority thereof or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether he is a resident of one of the Contracting States or not, has in a State other than that of which he is a resident a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment or fixed base, then such interest shall be deemed to arise in the Contracting State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest or between both of them and some other person the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Convention.HistoryArt 11 amended by Sch 3A (the Canadian Protocol) Art 9.
ARTICLE 12 Royalties
(1)
Royalties arising in one of the Contracting States, beingroyalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
(3)
The term "royalties" as used 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, trade mark or other like property or right; or
(b) the use of, or the right to use, any industrial, commercial or scientific equipment; or
(c) the supply of scientific, technical, industrial or commercial knowledge or information; or
(d) the supply of any assistance that is 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); or
(e) the use of, or the right to use:
(i) motion picture films; or
(ii) films or videotapes or other means of reproduction 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.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business through a permanent establishment situated in the other Contracting State, or performs professional services from a fixed base situated in that other State, being the State in which the royalties arise and the asset giving rise to the royalties is effectively connected with that permanent establishment or fixed base. In such a case, the provisions of Article 7 or 14, as the case may be, shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is that Contracting State itself or a political subdivision or a local authority thereof or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether he is a resident of one of the Contracting States or not, has in a State other than that of which he is a resident a permanent establishment or a fixed base in connection with which the obligation to pay the royalties was incurred, and those royalties are borne by that permanent establishment or fixed base, then such royalties shall be deemed to arise in the Contracting State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties or between both of them and some other person the amount of the royalties paid, having regard to what they are paid for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Convention.
(7)
Without prejudice to whether or not such payments would be dealt with as royalties under this Article in the absence of this paragraph, the term "royalties" as used in this Article shall not include payments or credits made as consideration for the supply of, or the right to use, source code in a computer software program, provided that the right to use the source code is limited to such use as is necessary to enable effective operation of the program by the user.
(8)
Without prejudice to whether or not such payments would be dealt with as royalties under this Article in the absence of this paragraph, the term "royalties" as used in this Article shall include 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 reception of, or the right to receive, visual images or sounds, or both, that are transmitted to the public by satellite or by cable, optic fibre or similar technology; or
(b) the use of, or the right to use, in connection with television or radio broadcasting, visual images or sounds, or both, that are transmitted by satellite or by cable, optic fibre or similar technology; or
(c) total or partial forbearance in respect of the use or supply of any property or right referred to in this paragraph.HistoryArt 12 amended by Sch 3A (the Canadian Protocol) Art 10.
ARTICLE 13 Alienation of Property
(1)
Income, profits or gains derived by a resident of a Contracting State from the alienation of real property situated in the other Contracting State may be taxed in that other State.
(2)
Income, profits or gains from the alienation of property, other than real property, that forms part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or pertains to a fixed base available in that other State to a resident of the first-mentioned State for the purpose of performing independent personal services, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise) or of that fixed base, may be taxed in that other State.
(3)
Income, profits or gains from the alienation of ships or aircraft operated in international traffic, or of property, other than real property, pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise alienating such ships, aircraft, or other property is a resident.
(4)
Income, profits or gains derived by a resident of a Contracting State from the alienation of any shares or other interests in a company, or of an interest of any kind in a partnership, trust or other entity, where the value of the assets of such entity is derived principally, whether directly or indirectly (including through one or more interposed entities, such as, for example, through a chain of companies), from real property situated in the other Contracting State, may be taxed in that other State.
(5)
Nothing in this Convention shall affect the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of any property other than that to which any of the preceding paragraphs of this Article apply.
(6)
Where an individual who ceases to be a resident of a Contracting State, and immediately thereafter becomes a resident of the other Contracting State, is treated for the purposes of taxation in the first-mentioned State as having alienated a property and is taxed in that State by reason thereof, the individual may elect to be treated for the purposes of taxation in the other State as if the individual had, immediately before becoming a resident of that State, disposed of and re-acquired the property for an amount equal to its fair market value at that time.HistoryArt 13 substituted by Sch 3A (the Canadian Protocol) Art 11.
ARTICLE 14 Independent Personal Services
(1)
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base.
(2)
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
(a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the year of income or taxation year of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that State.HistoryArt 15 amended by Sch 3A (the Canadian Protocol) Art 12.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a resident of one of the Contracting States in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State. ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
(2)
Where income in respect of the personal activities of an entertainer as such accrues not to the entertainer but to another person, that income may, notwithstanding the provisions of Articles 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
(3)
The provisions of paragraph (2) shall not apply if it is established that neither the entertainer nor persons related to the entertainer, participate directly or indirectly in the profits of the other person referred to in that paragraph.
ARTICLE 18 Pensions and Annuities
(1)
Pensions and annuities arising in a Contracting State for the benefit of and paid to a resident of the other Contracting State may be taxed in that other State.
(2)
Pensions and annuities arising in a Contracting State in a year of income or taxation year may be taxed in that State and according to the law of that State, but the tax so charged shall not exceed the lesser of-
(a) 15 per cent of the pension or annuity received in the year; and
(b) the tax that would be payable in respect of the pension or annuity received in the year if the recipient were a resident of the Contracting State in which the pension or annuity arises.However, the limitation on the tax that may be charged in the Contracting State in which pensions and annuities arise does not apply to payments of any kind under an income-averaging annuity contract.
(3)
Any alimony or other maintenance payment arising in a Contracting State and paid to a resident of the other Contracting State, shall be taxable only in the first-mentioned State.
ARTICLE 19 Government Service
(1)
Remuneration (other than a pension or annuity) paid by a Contracting State or a political sub-division or a local authority thereof to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the recipient is a resident of that State who:
(a) is a citizen of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
(2)
The provisions of paragraph (1) shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by one of the Contracting States or a political sub-division or a local authority thereof. In such a case the provisions of Articles 15 and 16 shall apply.
ARTICLE 20 Students
Where a student, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in the other State solely for the purpose of his education, receives payments from sources outside the other State for the purpose of his maintenance or education, those payments shall be exempt from tax in the other State. ARTICLE 21 Income Not Expressly Mentioned
(1)
Subject to the provisions of paragraph (2), items of income of a resident of one of the Contracting States which are not expressly mentioned in the foregoing Articles of this Convention shall be taxable only in that Contracting State.
(2)
However, if such income is derived by a resident of one of theContracting States from sources in the other Contracting State, such income may also be taxed in the Contracting State in which it arises and, subject to paragraph (3), according to the law of that State.
(3)
Where the income is income derived from an estate or trust resident in Canada by a resident of Australia the Canadian tax on that income shall not exceed 15 per cent of the gross amount of the income if it is subject to tax in Australia.
(4)
The provisions of paragraph (3) shall not apply if the recipient of the income, being a resident of Australia, carries on in Canada a business through a permanent establishment situated therein, or performs in Canada professional services from a fixed base situated therein, and the right or interest in the estate or trust in respect of which the income is paid is effectively connected with such permanent establishment or fixed base. In such a case the provisions of Article 7 or 14, as the case may be, shall apply.
ARTICLE 22 Source of Income
(1)
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8 and 10 to 19, may be taxed in the other Contracting State, shall for the purposes of the law of that other Contracting State relating to its tax be deemed to be income from sources in that other Contracting State.
(2)
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8 and 10 to 19, may be taxed in the other Contracting State, shall for the purposes of Article 23 and of the law of the first-mentioned Contracting State relating to its tax be deemed to be income from sources in the other Contracting State.HistoryArt 22 substituted by Sch 3A (the Canadian Protocol) Art 13.
CHAPTER IV
ARTICLE 23 Elimination of Double Taxation
METHODS OF PREVENTION OF DOUBLE TAXATION
(1)
In the case of Australia, double taxation shall be avoided as follows:
(a) subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article), Canadian tax paid under the law of Canada and in accordance with this Convention, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Canada shall be allowed as a credit against Australian tax payable in respect of that income;
(b) subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article), where a company which is a resident of Canada and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly at least 10 per cent of the voting power of the first-mentioned company, the credit referred to in subparagraph (a) shall include the Canadian tax paid by that first-mentioned company in respect of that portion of its profits out of which the dividend is paid.
(2)
In the case of Canada, double taxation shall be avoided as follows:
(a) subject to the existing provisions of the law of Canada regarding the deduction from tax payable in Canada of tax paid in a territory outside Canada and to any subsequent modification of those provisions (which shall not affect the general principle hereof) and unless a greater deduction or relief is provided under the laws of Canada, tax payable in Australia on profits, income or gains from sources in Australia shall be deducted from any Canadian tax payable in respect of such profits, income or gains;
(b) subject to the existing provisions of the law of Canada regarding the allowance as a credit against Canadian tax of tax payable in a territory outside Canada and to any subsequent modification of those provisions (which shall not affect the general principle hereof) where a company which is a resident of Australia pays a dividend to a company which is a resident of Canada and which controls directly or indirectly at least 10 per cent of the voting power in the first-mentioned company, the credit shall take into account the tax payable in Australia by that first-mentioned company in respect of the profits out of which such dividend is paid; and
(c) where, in accordance with any provision of this Convention, income derived by a resident of Canada is exempt from tax in Canada, Canada may nevertheless, in calculating the amount of tax on other income, take into account the exempted income.HistoryArt 23 substituted by Sch 3A (the Canadian Protocol) Art 14.
CHAPTER V SPECIAL PROVISIONS
ARTICLE 24 Mutual Agreement Procedure
(1)
Where a resident of a Contracting State considers that the actions of the competent authority of one or both of the Contracting States result or will result for him in taxation not in accordance with this Convention, he may, without prejudice to the remedies provided by the national laws of those States, present his case in writing to the competent authority of the Contracting State of which he is a resident.
(2)
The competent authority shall endeavour, if the taxpayer's claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Convention.
(3)
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the application of this Convention.
(4)
The competent authorities of the Contracting States may consult together with respect to the elimination of double taxation in cases not provided for in the Convention.
(5)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Convention.
(6)
For the purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of this Convention may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph (3) of this Article or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States.HistoryArt 24 amended by Sch 3A (the Canadian Protocol) Art 15.
ARTICLE 25 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Convention or of the domestic laws of the Contracting States concerning the taxes to which this Convention applies insofar as the taxation thereunder is not contrary to this Convention. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment, collection or enforcement of the taxes to which this Convention applies, or with the determination of appeals in relation thereto, and shall be used only for such purposes.
(2)
In no case shall the provisions of paragraph (1) be construed so as to impose on a Contracting State the obligation-
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 26 Diplomatic and Consular Officials
(1)
Nothing in this Convention shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special agreements.
(2)
This Convention shall not apply to International Organizations, to organs or officials thereof and to persons who are members of a diplomatic, consular or permanent mission of a third State, being present in a Contracting State and who are not liable in either Contracting State to the same obligations in relation to tax on their total world income as are residents thereof.
ARTICLE 26A Various Interests of Canadian Residents
Nothing in this Convention shall be construed as preventing Canada from imposing a tax on amounts included in the income of a resident of Canada with respect to a partnership, trust, or controlled foreign affiliate, in which that resident has an interest.HistoryArt 26A inserted by Sch 3A (the Canadian Protocol) Art 16.
CHAPTER VI
ARTICLE 27 Entry Into Force
FINAL PROVISIONS
(1)
This Convention shall come into force on the date on which the Government of Australia and the Government of Canada exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Convention the force of law in Australia and in Canada, as the case may be, and thereupon this Convention shall have effect-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in respect of income derived on or after 1 July 1975
(ii) in respect of other Australian tax, for any year of income beginning on or after 1 July 1975
(b) in Canada-
(i) in respect of tax withheld at the source on amounts paid or credited to non-residents on or after 1 January 1976
(ii) in respect of other Canadian tax, for taxation years beginning on or after 1 January 1976.
(2)
Subject to paragraph (3) of this Article, the Agreement between the Government of the Commonwealth of Australia and the Government of Canada for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income signed at Mont Tremblant on 1 October 1957 (in this Article referred to as "the 1957 Agreement") shall cease to have effect in relation to any tax in respect of which this Convention comes into effect in accordance with paragraph (1) of this Article.
(3)
Where any provision of the 1957 Agreement would have afforded any greater relief from tax in one of the Contracting States than is afforded by this Convention, any such provision shall continue to have effect in that Contracting State-
(a) in the case of Australia in respect of withholding tax on income that is derived by a non-resident, in respect of income derived during any financial year beginning before the date of signature of this Convention and, in respect of other Australian tax, for any year of income beginning before that date;
(b) in the case of Canada in respect of tax withheld at the source on amounts paid or credited to non-residents before 31 December in the calendar year during which this Convention was signed and, in respect of other Canadian tax for any taxation year beginning on or before that date.
(4)
The 1957 Agreement shall terminate on the last date on which it has effect in accordance with the foregoing provisions of this Article.
ARTICLE 28 Termination
This Convention shall continue in effect indefinitely, but the Government of Australia or the Government of Canada may, on or before 30 June in any calendar year after the year 1983, give to the other Government through the diplomatic channel written notice of termination and, in that event, this Convention shall cease to be effective-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in respect of income derived on or after 1 July in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, for any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in Canada-
(i) in respect of tax withheld at the source on amounts paid or credited to non-residents on or after 1 January in the second calendar year next following that in which the notice of termination is given;
(ii) in respect of other Canadian tax, for any taxation year beginning on or after 1 January in the second calendar year next following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorized thereto, have signed this Convention.
DONE in Canberra on the twenty-first day of May 1980 in the English and French languages, the two versions being equally authentic.
JOHN HOWARD
For the Government of AustraliaEDWARD LUMLEY
For the Government of Canada
Sch 3 substituted by No 127 of 1980. Former Sch 3 inserted by No 52 of 1958.
(Repealed by No 45 of 2011)
History
Sch 3A repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Canadian Protocol from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 3A formerly read:
SCHEDULE 3A - Canadian Protocol
Note: See section 3.
PROTOCOL AMENDING THE CONVENTION BETWEEN AUSTRALIA AND CANADA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1
Article 2 of the Convention shall be deleted and replaced by the following:"ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Convention shall apply are:
(a) in the case of Australia:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of Australia;
(b) in the case of Canada:
the income taxes imposed by the Government of Canada under the Income Tax Act.
(2)
This Convention shall apply also to any identical or substantially similar taxes which are imposed under the federal law of Australia or the law of Canada after the date of signature of this Convention in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in the law of their respective States relating to the taxes to which this Convention applies within a reasonable period of time after those changes."
ARTICLE 2
1.
Subparagraphs (a) and (k) of paragraph (1) of Article 3 of the Convention shall be deleted and respectively replaced by the following:
"(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; andand 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 the exploitation of any of the natural resources of the seabed and subsoil of the continental shelf;"
(vi) the Coral Sea Islands Territory,; and
"(k) the term "international traffic" means any voyage of a ship or aircraft operated by an enterprise of a Contracting State to transport passengers or property except where the principal purpose of the voyage is to transport passengers or property between places within the other Contracting State."
2.
Paragraph (3) of Article 3 of the Convention shall be deleted and replaced by the following:
"(3)
As regards the application of this Convention at any time by a Contracting State, 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 State concerning the taxes to which the Convention applies, any meaning under the applicable tax law of that State prevailing over a meaning given to the term under other law of that State."
ARTICLE 3
Paragraphs (1) and (2) of Article 4 of the Convention shall be deleted and replaced by the following:
"(1)
Subject to paragraph (2), for the purposes of this Convention, a person is a resident of a Contracting State if that person is a resident of that State for the purposes of its tax. A Contracting State or any political subdivision or local authority thereof or any agency or instrumentality of any such State, subdivision or authority is also a resident of that State for the purposes of this Convention.
(2)
A person is not a resident of a Contracting State for the purposes of this Convention if the person is liable to tax in that State in respect only of income from sources in that State."ARTICLE 4
Subparagraph (b) of paragraph (4) of Article 5 of the Convention shall be deleted and replaced by the following:
"(b) substantial equipment is being used in that State by, for or under contract with the enterprise other than in connection with a building site or construction, installation or assembly project of the enterprise."ARTICLE 5
Article 6 of the Convention shall be deleted and replaced by the following:"ARTICLE 6 Income from Real Property
(1)
Income from real property may be taxed in the Contracting State in which the real property is situated.
(2)
For the purposes of this Convention, the term "real property" in relation to a Contracting State, shall have the meaning which it has under the law of that State and shall include:
(a) a lease of land and any other interest in or over land, whether improved or not, including a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine those deposits or resources; and
(b) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources.
(3)
Any interest or right referred to in paragraph (2) shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
(4)
The provisions of paragraphs (1) and (3) shall also apply to the income from real property of an enterprise and to income from real property used for the performance of independent personal services."
ARTICLE 6
1.
Paragraph (6) of Article 7 of the Convention shall be deleted and replaced by the following:
"(6)
Where profits include items which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article."
2.
A new paragraph (8) shall be added to Article 7 of the Convention as follows:
"(8)
Where:
(a) a resident of Canada is beneficially entitled, whether directly or through one or more interposed trusts, to a share of the business profits of an enterprise carried on in Australia by the trustee of a trust other than a trust which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in Australia,the enterprise carried on by the trustee shall be deemed to be a business carried on in Australia by that resident through a permanent establishment situated in Australia and that share of business profits shall be attributable to that permanent establishment."
ARTICLE 7
Paragraph (4) of Article 8 of the Convention shall be deleted and replaced by the following:
"(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise taken on board in a Contracting State for discharge at a place in that State shall be treated as profits from operations confined solely to places in that State."ARTICLE 8
1.
Paragraphs (2), (4) and (6) of Article 10 of the Convention shall be deleted and respectively replaced by the following:
"(2)
However, those dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed:
(a)
(i) in the case of dividends paid by a company that is a resident of Australia for the purposes of its tax, 5 per cent of the gross amount of the dividends, to the extent to which the dividends have been fully franked in accordance with the law of Australia, if a company that holds directly at least 10 per cent of the voting power of the company paying the dividends is beneficially entitled to those dividends; and
(ii) in the case of dividends paid by a company that is a resident of Canada for the purposes of its tax, except in the case of dividends paid by a non-resident-owned investment corporation that is a resident of Canada for the purposes of its tax, 5 per cent of the gross amount of the dividends if a company that controls directly or indirectly at least 10 percent of the voting power in the company paying the dividends is beneficially entitled to those dividends; and
(b) 15 per cent of the gross amount of the dividends in all other cases,and if the relevant law of either Contracting State is varied in a manner that bears upon this provision, otherwise than in minor respects so as not to affect its general character, the Contracting States shall consult each other with a view to agreeing to any amendment of this paragraph that may be appropriate."
"(4)
The term "dividends" as used in this Article means income from shares, as well as other amounts which are subjected to the same taxation treatment as income from shares by the law of the State of which the company making the distribution is a resident for the purposes of its tax."; and
"(6)
Canada may impose, on the earnings attributable to a permanent establishment in Canada of a company which is a resident of Australia or on the earnings of such company attributable to the alienation of real property situated in Canada where the company is carrying on a trade in real property, a tax (in this paragraph referred to as a "branch tax") in addition to the tax that would be chargeable on the earnings of a company that is a resident of Canada, except that any branch tax so imposed shall not exceed 5 per cent of the amount of such earnings that have not been subjected to such branch tax in previous taxation years. For the purposes of this provision, the term "earnings" means the earnings attributable to the alienation of such real property situated in Canada as may be taxed by Canada under the provisions of Article 6 or paragraph (1) of Article 13, and the profits, including any gains, attributable to a permanent establishment in Canada in a year and previous years after deducting therefrom all other taxes, other than the branch tax referred to herein, imposed on such profits in Canada."
2.
The reference in paragraph (7) of Article 10 of the Convention to "15 per cent" shall be deleted and replaced by a reference to "5 per cent".
ARTICLE 9
The reference in paragraph (2) of Article 11 of the Convention to "15 per cent" shall be deleted and replaced by a reference to "10 per cent".ARTICLE 10
1.
Paragraph (3) of Article 12 of the Convention shall be deleted and replaced by the following:
"(3)
The term "royalties" as used 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, trade mark or other like property or right; or
(b) the use of, or the right to use, any industrial, commercial or scientific equipment; or
(c) the supply of scientific, technical, industrial or commercial knowledge or information; or
(d) the supply of any assistance that is 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); or
(e) the use of, or the right to use:
(i) motion picture films; or
(ii) films or videotapes or other means of reproduction 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."
2.
A new paragraph (7) shall be added to Article 12 of the Convention as follows:
"(7)
Without prejudice to whether or not such payments would be dealt with as royalties under this Article in the absence of this paragraph, the term "royalties" as used in this Article shall not include payments or credits made as consideration for the supply of, or the right to use, source code in a computer software program, provided that the right to use the source code is limited to such use as is necessary to enable effective operation of the program by the user."
3.
A new paragraph (8) shall be added to Article 12 of the Convention as follows:
"(8)
Without prejudice to whether or not such payments would be dealt with as royalties under this Article in the absence of this paragraph, the term "royalties" as used in this Article shall include 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 reception of, or the right to receive, visual images or sounds, or both, that are transmitted to the publicby satellite or by cable, optic fibre or similar technology; or
(b) the use of, or the right to use, in connection with television or radio broadcasting, visual images or sounds, or both, that are transmitted by satellite or by cable, optic fibre or similar technology; or
(c) total or partial forbearance in respect of the use or supply of any property or right referred to in this paragraph."
ARTICLE 11
Article 13 of the Convention shall be deleted and replaced by the following:"ARTICLE 13 Alienation of Property
(1)
Income, profits or gains derived by a resident of a Contracting State from the alienation of real property situated in the other Contracting State may be taxed in that other State.
(2)
Income, profits or gains from the alienation of property, other than real property, that forms part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or pertains to a fixed base available in that other State to a resident of the first-mentioned State for the purpose of performing independent personal services, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise) or of that fixed base, may be taxed in that other State.
(3)
Income, profits or gains from the alienation of ships or aircraft operated in international traffic, or of property, other than real property, pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise alienating such ships, aircraft, or other property is a resident.
(4)
Income, profits or gains derived by a resident of a Contracting State from the alienation of any shares or other interests in a company, or of an interest of any kind in a partnership, trust or other entity, where the value of the assets of such entity is derived principally, whether directly or indirectly (including through one or more interposed entities, such as, for example, through a chain of companies), from real property situated in the other Contracting State, may be taxed in that other State.
(5)
Nothing in this Convention shall affect the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of any property other than that to which any of the preceding paragraphs of this Article apply.
(6)
Where an individual who ceases to be a resident of a Contracting State, and immediately thereafter becomes a resident of the other Contracting State, is treated for the purposes of taxation in the first-mentioned State as having alienated a property and is taxed in that State by reason thereof, the individual may elect to be treated for the purposes of taxation in the other State as if the individual had, immediately before becoming a resident of that State, disposed of and re-acquired the property for an amount equal to its fair market value at that time."
ARTICLE 12
1.
Paragraphs (2) and (3) of Article 15 of the Convention shall be deleted and replaced by the following:
"(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
(a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the year of income or taxation year of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State."
2.
Paragraph (4) of Article 15 of the Convention shall be renumbered as paragraph (3).
ARTICLE 13
Article 22 of the Convention shall be deleted and replaced by the following:"ARTICLE 22 Source of Income
(1)
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8 and 10 to 19, may be taxed in the other Contracting State, shall for the purposes of the law of that other Contracting State relating to its tax be deemed to be income from sources in that other Contracting State.
(2)
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8 and 10 to 19, may be taxed in the other Contracting State, shall for the purposes of Article 23 and of the law of the first-mentioned Contracting State relating to its tax be deemed to be income from sources in the other Contracting State."
ARTICLE 14
Article 23 of the Convention shall be deleted and replaced by the following:"ARTICLE 23 Elimination of Double Taxation
(1)
In the case of Australia, double taxation shall be avoided as follows:
(a) subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article), Canadian tax paid under the law of Canadaand in accordance with this Convention, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Canada shall be allowed as a credit against Australian tax payable in respect of that income;
(b) subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article), where a company which is a resident of Canada and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly at least 10 per cent of the voting power of the first-mentioned company, the credit referred to in subparagraph (a) shall include the Canadian tax paid by that first-mentioned company in respect of that portion of its profits out of which the dividend is paid.
(2)
In the case of Canada, double taxation shall be avoided as follows:
(a) subject to the existing provisions of the law of Canada regarding the deduction from tax payable in Canada of tax paid in a territory outside Canada and to any subsequent modification of those provisions (which shall not affect the general principle hereof) and unless a greater deduction or relief is provided under the laws of Canada, tax payable in Australia on profits, income or gains from sources in Australia shall be deducted from any Canadian tax payable in respect of such profits, income or gains;
(b) subject to the existing provisions of the law of Canada regarding the allowance as a credit against Canadian tax of tax payable in a territory outside Canada and to any subsequent modification of those provisions (which shall not affect the general principle hereof) where a company which is a resident of Australia pays a dividend to a company which is a resident of Canada and which controls directly or indirectly at least 10 per cent of the voting power in the first-mentioned company, the credit shall take into account the tax payable in Australia by that first-mentioned company in respect of the profits out of which such dividend is paid; and
(c) where, in accordance with any provision of this Convention, income derived by a resident of Canada is exempt from tax in Canada, Canada may nevertheless, in calculating the amount of tax on other income, take into account the exempted income."
ARTICLE 15
A new paragraph (6) shall be added to Article 24 of the Convention as follows:
"(6)
For the purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of this Convention may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph (3) of this Article or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States."ARTICLE 16
A new Article 26A shall be added to the Convention immediately after Article 26 as follows:"ARTICLE 26A Various Interests of Canadian Residents
Nothing in this Convention shall be construed as preventing Canada from imposing a tax on amounts included in the income of a resident of Canada with respect to a partnership, trust, or controlled foreign affiliate, in which that resident has an interest."ARTICLE 17
The Government of Australia and the Government of Canada shall notify each other through the diplomatic channel of the completion of their respective internal procedures required for the bringing into force of this Protocol which shall form an integral part of the Convention. The Protocol shall enter into force on the date of the later of these notifications and its provisions shall thereupon have effect:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the Protocol enters into force; and
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the Protocol enters into force;
(b) in Canada:
(i) in respect of tax withheld at the source on amounts paid or credited to non-residents, on or after 1 January in the calendar year next following that in which the Protocol enters into force; and
(ii) in respect of other Canadian tax, for taxation years beginning on or after 1 January in the calendar year next following that in which the Protocol enters into force.IN WITNESS WHEREOF the undersigned, duly authorised thereto by their respective Governments, have signed this Protocol.
DONE at Canberra, this twenty-third day of January 2002, in the English and French languages, the two versions being equally authentic.
FOR THE GOVERNMENT OF AUSTRALIA:
Helen Lloyd Coonan
[Signatures omitted]FOR THE GOVERNMENT OF CANADA:
Jean T. Fournier
Sch 3A inserted by No 129 of 2002.
(Repealed by No 45 of 2011)
History
Sch 4 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the New Zealand Convention from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 4 formerly read:
SCHEDULE 4 - New Zealand Convention
Note: See section 3.
CONVENTION BETWEEN AUSTRALIA AND NEW ZEALAND FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAXES ON INCOME AND FRINGE BENEFITS AND THE PREVENTION OF FISCAL EVASION
CHAPTER I SCOPE OF THE CONVENTION
Article 1 PERSONS COVERED
1.
This Convention shall apply to persons who are residents of one or both of the Contracting States.
2.
In the case of an item of income (including profits or gains) derived by or through a person that is fiscally transparent with respect to that item of income under the laws of either State, such item shall be considered to be derived by a resident of a State to the extent that the item is treated for the purposes of the taxation law of such State as the income of a resident.
Article 2 TAXES COVERED
1.
The taxes to which this Convention shall apply are:
a) in the case of Australia:
(i) the income tax, including the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources; andimposed under the federal law of Australia
(ii) the fringe benefits tax
(hereinafter referred to as "Australian tax");
b) in the case of New Zealand:
the income tax, including the fringe benefit tax
(hereinafter referred to as "New Zealand tax").
2.
The Convention shall apply also to any identical or substantially similar taxes that are imposed under the federal laws of Australia or the laws of New Zealand after the date of signature of the Convention in addition to, or in place of, the taxes listed in paragraph 1. The competent authorities of the Contracting States shall notify each other of any significant changes that have been made in the laws of their respective States relating to the taxes to which the Convention applies within a reasonable period of time after those changes.
CHAPTER II DEFINITIONS
Article 3 GENERAL DEFINITIONS
1.
For the purposes of this Convention, 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; andand 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;
(vi) the Coral Sea Islands Territory,
b) the term "New Zealand" means the territory of New Zealand but does not include Tokelau; it also includes any area beyond the territorial sea designated under New Zealand legislation and in accordance with international law as an area in which New Zealand may exercise sovereign rights with respect to natural resources;
c) the term "business" includes the performance of professional services and of other activities of an independent character;
d) the term "company" means any body corporate or any entity that is treated as a body corporate for tax purposes;
e) 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 New Zealand, the Commissioner of Inland Revenue or an authorised representative of the Commissioner;
f) the term "enterprise" applies to the carrying on of any business;
g) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;
h) the term "international traffic" means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State;
i) the term "national", in relation to a Contracting State, means:
(i) any individual possessing the nationality or citizenship of that Contracting State; and
(ii) any company, partnership or association deriving its status as such from the laws in force in that Contracting State;
j) the term "person" includes an individual, a trust, a partnership, a company and any other body of persons;
k) the term "tax" means Australian tax or New Zealand tax as the context requires, but does not include any penalty or interest imposed under the law of either Contracting State relating to its tax;
l) the term "recognised stock exchange" means:
(i) the Australian Securities Exchange and any other Australian stock exchange recognised as such under Australian law;
(ii) the securities markets (other than the New Zealand Debt Market) operated by the New Zealand Exchange Limited; and
(iii) any other stock exchange agreed upon by the competent authorities; and
m) the term "managed investment trust" means a trust that is a managed investment trust for the purposes of Australian tax.
2.
For the purposes of Articles 5 and 6, the term "natural resources" means naturally-occurring deposits or sources of materials and substances, such as minerals, oils, gas and water. The term also includes naturally-occurring forests and fish.
3.
As regards the application of the Convention at any time by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning that it has at that time under the laws of that State concerning the taxes to which the Convention applies, any meaning under the applicable tax laws of that State prevailing over a meaning given to the term under other laws of that State.
4.
For the purposes of Articles 10, 11 and 12, dividends, interest or royalties arising in a Contracting State and derived by or through a trust shall be deemed to be beneficially owned by a resident of the other Contracting State where such income is subject to tax in that other State in the hands of a trustee of that trust.
Article 4 RESIDENT
1.
For the purposes of this Convention, the term "resident of a Contracting State" means any person who, under the laws of that State, is liable to tax as a resident of that State, and also includes that State and any political subdivision or local authority of that State. This term however, does not include any person who is liable to tax in that State in respect only of income from sources in that State.
2.
Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then their status shall be determined as follows:
a) the individual shall be deemed to be a resident only of the State in which a permanent home is available to that individual; but if a permanent home is available in both States, or in neither of them, that individual shall be deemed to be a resident only of the State with which the individual's personal and economic relations are closer (centre of vital interests);
b) if the State in which the centre of vital interests is situated cannot be determined, the individual shall be deemed to be a resident only of the State in which that individual has an habitual abode;
c) if the individual has an habitual abode in both States or in neither of them, the individual shall be deemed to be a resident only of the State of which that individual is a national.
3.
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident only of the State in which its place of effective management is situated. If the State in which the place of effective management is situated cannot be determined, or the place of effective management is in neither State, then the competent authorities of the Contracting States shall endeavour to determine by mutual agreement in accordance with Article 25 the Contracting State of which the person shall be deemed to be a resident for the purposes of the Convention, having regard to its places of management, the place where it is incorporated or otherwise constituted and any other relevant factors. In the absence of such agreement, such person shall not be entitled to any relief or exemption from tax provided by this Convention.
4.
Where an item of income, profits or gains derived by an individual is exempt from tax in New Zealand by reason only of the status of that individual as a transitional resident under the laws of New Zealand, no relief or exemption from tax shall be available under this Convention in Australia in respect of that item of income, profits or gains.
5.
Notwithstanding paragraph 3 of this Article, where by reason of paragraph 1 of this Article a company, which is a participant in a dual listed company arrangement, is a resident of both Contracting States then it shall be deemed to be a resident only of the Contracting State in which it is incorporated, provided it has its primary stockexchange listing in that State.
6.
The term "dual listed company arrangement" as used in this Article means an arrangement pursuant to which two companies that are listed on a stock exchange specified in subsubparagraphs 1 l)(i) and (ii) of Article 3 respectively, while maintaining their separate legal entity status, shareholdings and listings, align their strategic directions and the economic interests of their respective shareholders through:
a) the appointment of common (or almost identical) boards of directors, except where the effect of the relevant regulatory requirements prevents this;
b) management of the operations of the two companies on a unified basis;
c) equalised distributions to shareholders in accordance with an equalisation ratio applying between the two companies, including in the event of a winding up of one or both of the companies;
d) the shareholders of both companies voting in effect as a single decision-making body on substantial issues affecting their combined interests; and
e) cross-guarantees as to, or similar financial support for, each other's material obligations or operations, except where the effect of the relevant regulatory requirements prevents such guarantees or financial support.
7.
Notwithstanding the other provisions of this Convention, a managed investment trust which receives income (including profits and gains) arising in New Zealand shall be treated, for the purposes of applying the Convention to such income, as an individual resident of Australia and as the beneficial owner of the income it receives, but only to the extent that residents of Australia are the owners of the beneficial interests in the managed investment trust. However, if:
a) the managed investment trust has its principal class of units listed on a stock exchange specified in subsubparagraph 1 (l)(i) of Article 3 and is regularly traded on one or more recognised stock exchanges; or
b) at least 80 per cent of the value of the beneficial interests in the managed investment trust is owned by residents of Australia,the managed investment trust shall be treated as an individual resident of Australia and as the beneficial owner of all the income it receives.
Article 5 PERMANENT ESTABLISHMENT
1.
For the purposes of this Convention, the term "permanent establishment" means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
2.
The term "permanent establishment" includes especially:
a) a place of management;
b) a branch;
c) an office;
d) a factory;
e) a workshop;
f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources; and
g) an agricultural, pastoral or forestry property.
3.
A building site or a construction, installation or assembly project shall constitute a permanent establishment but only if it lasts more than 6 months.
4.
Notwithstanding the provisions of paragraphs 1, 2 and 3, where an enterprise of a Contracting State:
a) performs services in the other Contracting State
(i) through an individual who is present in that other State for a period or periods exceeding in the aggregate 183 days in any twelve month period, and more than 50 per cent of the gross revenues attributable to active business activities of the enterprise during this period or periods are derived from the services performed in that other State through that individual, or
(ii) for a period or periods exceeding in the aggregate 183 days in any twelve month period, and these services are performed for the same project or for connected projects through one or more individuals who are present and performing such services in that other State;
b) carries on activities (including the operation of substantial equipment) in the other State in the exploration for or exploitation of natural resources or standing timber situated in that other State for a period or periods exceeding in the aggregate 90 days in any twelve month period; or
c) operates substantial equipment in the other State (including as provided in subparagraph b)) for a period or periods exceeding in the aggregate 183 days in any twelve month period,such activities shall be deemed to be carried on through a permanent establishment of the enterprise situated in that other State, unless the activities are limited to those mentioned in paragraph 7 which, if exercised through a fixed place of business, would not make this place of business a permanent establishment under the provisions of that paragraph.
5.
For the purposes of subsubparagraph a)(ii) of paragraph 4, services performed by an individual on behalf of one enterprise shall not be considered to be performed by another enterprise through that individual unless that other enterprise supervises, directs or controls the manner in which these services are performed by the individual. Furthermore, services performed through an individual who is present and performing such services in a State for any period not exceeding 5 days shall be disregarded for the purposes of subsubparagraph a)(ii) of paragraph 4, unless such services are performed by that individual in that State on a regular or frequent basis.
6.
a) The duration of activities under paragraphs 3 and 4 will be determined by aggregating the periods during which activities are carried on in a Contracting State by associated enterprises provided that the activities of the enterprise in that State are connected with the activities carried on in that State by its associate.
b) The period during which two or more associated enterprises are carrying on concurrent activities will be counted only once for the purpose of determining the duration of activities.
c) Under this Article, an enterprise shall be deemed to be associated with another enterprise if:
(i) one is controlled directly or indirectly by the other; or
(ii) both are controlled directly or indirectly by the same person or persons.
7.
Notwithstanding the preceding provisions of this Article, the term "permanent establishment" shall be deemed not to include:
a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise;
e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character;
f) the maintenance of a fixed place of business solely for any combination of activities mentioned in sub-paragraphs a) to e) of this paragraph,provided that such activities are, in relation to the enterprise, of a preparatory or auxiliary character.
8.
Notwithstanding the provisions of paragraphs 1 and 2, where a person - other than an agent of an independent status to whom paragraph 9 applies - is acting on behalf of an enterprise and:
a) has, and habitually exercises, in a Contracting State an authority to substantially negotiate or conclude contracts on behalf of the enterprise; or
b) manufactures or processes in a Contracting State for the enterprise goods or merchandise belonging to the enterprise,that enterprise shall be deemed to have a permanent establishment in that State in respect of any activities which that person undertakes for the enterprise, unless the activities of such person are limited to those mentioned in paragraph 7 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.
9.
An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a person who is a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business as such a broker or agent.
10.
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.
11.
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph 7 of Article 11 and paragraph 5 of Article 12 whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of a Contracting State, has a permanent establishment in a Contracting State.
CHAPTER III TAXATION OF INCOME AND FRINGE BENEFITS
Article 6 INCOME FROM REAL PROPERTY
1.
Income derived by a resident of a Contracting State from real property (including profits of an enterprise from agriculture, forestry or fishing) may be taxed in the Contracting State in which the real property is situated.
2.
The term "real property" shall have the meaning which it has under the law of the Contracting State in which the property in question is situated and includes:
a) any natural resources, property accessory to real property, rights to which the provisions of general law respecting real property apply, and rights to standing timber;
b) a lease of land and any other interest in or over land, whether improved or not, including a right to explore for natural resources, and a right to exploit those resources; and
c) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or for the right to explore for or exploit, natural resources.Ships, boats and aircraft shall not be regarded as real property.
3.
Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, natural resources or standing timber, as the case may be, are situated or where the exploration may take place.
4.
Theprovisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of real property.
5.
The provisions of paragraphs 1, 3 and 4 shall also apply to the income from real property of an enterprise. The profits of the enterprise shall be determined in accordance with the principles of paragraphs 2 and 3 of Article 7 as if such income were attributable to a permanent establishment in the Contracting State in which the real property is situated.
Article 7 BUSINESS PROFITS
1.
The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
2.
Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment.
3.
In determining the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment, including executive and general administrative expenses so incurred, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
4.
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
5.
Where profits include items of income which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article.
6.
Nothing in this Article shall affect the application of any law of a Contracting State relating to tax imposed on income from insurance with non-resident insurers.
7.
Where:
a) a resident of a Contracting State beneficially owns (whether as a direct beneficiary of a trust or through one or more interposed trusts) a share of the profits of a business of an enterprise carried on in the other Contracting State by the trustee of a trust other than a trust which is treated as a company for tax purposes; and
b) in relation to that enterprise, that trustee has or would have, if it were a resident of the first-mentioned State, a permanent establishment in the other State,then the business of the enterprise carried on by the trustee through such permanent establishment shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated in that other State and the resident's share of profits may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
8.
No adjustments to the profits attributable to a permanent establishment of an enterprise for a year of income shall be made by a Contracting State after the expiration of 7 years from the date on which the enterprise has completed the tax filing requirements of that State for that year of income. The provisions of this paragraph shall not apply in the case of fraud, gross negligence or wilful default or where, within that period of 7 years, an audit into the profits of the enterprise has been initiated by either State.
Article 8 SHIPPING AND AIR TRANSPORT
1.
Profits of an enterprise of a Contracting State derived from the operation of ships or aircraft in international traffic shall be taxable only in that State.
2.
Notwithstanding the provisions of paragraph 1, amounts paid or payable to an enterprise of a Contracting State for carriage by ship or aircraft of passengers, livestock, mail, goods or merchandise which are shipped in the other Contracting State and are discharged at a place in that other State, or for leasing on a full basis of a ship or aircraft for purposes of such carriage, may be taxed in that other State.
3.
The profits to which the provisions of paragraphs 1 and 2 apply include profits from the operation of ships or aircraft derived through participation in a pooling arrangement or other profit sharing arrangement.
4.
For the purposes of this Article, profits from the operation of ships or aircraft in international traffic include profits from the use, maintenance or rental of containers (including trailers and related equipment for the transport of containers) used in the transport of goods or merchandise, provided that such use, maintenance or rental is directly connected or ancillary to the operation of ships or aircraft in international traffic.
Article 9 ASSOCIATED ENTERPRISES
1.
Where
a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or
b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,and in either case conditions operate between the twoenterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2.
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the profits accruing to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
3.
Where a Contracting State includes in the profits of an enterprise of that State - and taxes accordingly - profits on which an enterprise of the other Contracting State has been charged to tax in that other State and the profits so included are profits which might have been expected to have accrued to the enterprise of the first-mentioned State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then that other State shall make an appropriate adjustment to the amount of the tax charged therein on those profits. In determining such adjustment, due regard shall be had to the other provisions of this Convention and the competent authorities of the Contracting States shall if necessary consult each other.
4.
No adjustments to the profits of an enterprise for a year of income shall be made by a Contracting State in accordance with the provisions of paragraphs 1 and 2 after the expiration of 7 years from the date on which the enterprise has completed the tax filing requirements of that State for that year of income. The provisions of this paragraph shall not apply in the case of fraud, gross negligence or wilful default or where, within that period of 7 years, an audit into the profits of an enterprise has been initiated by that State.
Article 10 DIVIDENDS
1.
Dividends paid by a company which is a resident of a Contracting State, being dividends beneficially owned by a resident of the other Contracting State, may be taxed in that other State.
2.
However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident, and according to the laws of that State, but the tax so charged shall not exceed:
a) 5 per cent of the gross amount of the dividends if the beneficial owner of those dividends is a company which holds directly at least 10 per cent of the voting power in the company paying the dividends; and
b) 15 per cent of the gross amount of the dividends in all other cases.This paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.
3.
Notwithstanding the provisions of paragraph 2 of this Article, dividends shall not be taxed in the Contracting State of which the company paying the dividends is a resident if the beneficial owner of the dividends is a company that is a resident of the other Contracting State that has owned, directly or indirectly through one or more residents of either Contracting State, shares representing 80 per cent or more of the voting power of the company paying the dividends for a 12 month period ending on the date the dividend is declared and the company that is the beneficial owner of the dividends:
a) has its principal class of shares listed on a recognised stock exchange specified in subsubparagraph 1 l)(i) or (ii) of Article 3 and is regularly traded on one or more recognised stock exchanges;
b) is owned directly or indirectly by one or more companies:
(i) whose principal class of shares is listed on a recognised stock exchange specified in subsubparagraph 1 l)(i) or (ii) of Article 3 and is regularly traded on one or more recognised stock exchanges; or
(ii) which, if that company or each of those companies owned directly the holding in respect of which the dividends are paid, would be entitled to equivalent benefits in respect of such dividends under a tax treaty between the State of which that company is a resident and the Contracting State of which the company paying the dividends is a resident; or
c) does not meet the requirements of subparagraphs a) or b) of this paragraph but the competent authority of the first-mentioned Contracting State determines that the first sentence of paragraph 9 of this Article does not apply. The competent authority of the first-mentioned Contracting State shall consult the competent authority of the other Contracting State before refusing to grant benefits of this Convention under this subparagraph.
4.
Notwithstanding the provisions of paragraph 2, dividends shall not be taxed in the Contracting State of which the company paying the dividends is a resident if the beneficial owner of the dividends holds directly no more than 10 per cent of the voting power of the company paying the dividends, and the beneficial owner is a Contracting State, or political subdivision or a local authority thereof (including a government investment fund).
5.
The term "dividends" as used in this Article means income from shares or other rights participating in profits, as well as other amounts which are subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribution is a resident for the purposes of its tax.
6.
The provisions of paragraphs 1, 2, 3 and 4 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident through a permanent establishment situated therein and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
7.
Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company - being dividends beneficially owned by a person who is not a resident of the other Contracting State - except insofar as the holding in respect of which such dividends are paid is effectively connected with a permanent establishment situated in that other State, nor subject the company's undistributed profits to a tax on the company's undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State.
8.
Notwithstanding paragraph 7, dividends paid by a company which is a resident of Australia for the purposes of Australian tax and which is also a resident of New Zealand for the purposes of New Zealand tax may be taxed in a Contracting State to the extent that the dividends are paid out of profits or income arising in that State. Where such dividends are beneficially owned by a resident of the other Contracting State, paragraphs 2 and 3 of this Article shall apply as if the company paying the dividends were a resident only of the first-mentioned State.
9.
No relief shall be available under this Article if it is the main purpose or one of the main purposes of any person concerned with an assignment of the dividends, or with the creation or assignment of the shares or other rights in respect of which the dividend is paid, or the establishment, acquisition or maintenance of the company that is the beneficial owner of the dividends and the conduct of its operations, to take advantage of this Article. In any case where a Contracting State intends to apply this paragraph, the competent authority of that State shall consult with the competent authority of the other Contracting State.
Article 11 INTEREST
1.
Interest arising in a Contracting State and beneficially owned by a resident of the other Contracting State may be taxed in that other State.
2.
However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3.
Notwithstanding paragraph 2, interest arising in a Contracting State and beneficially owned by a resident of the other Contracting State may not be taxed in the first-mentioned State if:
a) the interest is derived by a Contracting State or by a political sub-division or a local authority thereof (including a government investment fund), or by a bank performing central banking functions in a Contracting State; or
b) the interest is derived by a financial institution which is unrelated to and dealing wholly independently with the payer. For the purposes of this Article, the term "financial institution" means a bank or other enterprise substantially deriving its profits by raising debt finance in the financial markets or by taking deposits at interest and using those funds in carrying on a business of providing finance.
4.
Notwithstanding paragraph 3, interest referred to in subparagraph b) of that paragraph may be taxed in the State in which it arises at a rate not exceeding 10 per cent of the gross amount of the interest if:
a) in the case of interest arising in New Zealand, it is paid by a person that has not paid approved issuer levy in respect of the interest. This subparagraph a) shall not apply if New Zealand does not have an approved issuer levy, or the payer of the interest is not eligible to elect to pay the approved issuer levy, or if the rate of the approved issuer levy payable in respect of such interest exceeds two percent of the gross amount of the interest. For the purposes of this Article, "approved issuer levy" includes any identical or substantially similar charge payable by the payer of interest arising in New Zealand enacted after the date of this Convention in place of approved issuer levy; or
b) it is paid as part of an arrangement involving back-to-back loans or other arrangement that is economically equivalent and intended to have a similar effect to back-to-back loans.
5.
The term "interest" as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage and whether or not carrying a right to participate in the debtor's profits, and in particular, income from government securities and income from bonds or debentures, as well as all other income treated as income from money lent by the laws, relating to tax, of the Contracting State in which the income arises, but does not include any income which is treated as a dividend under Article 10.
6.
The provisions of paragraphs 1 and 2, subparagraph b) of paragraph 3 and paragraph 4 of this Article shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises through a permanent establishment situated therein and the debt-claim in respect of which the interest is paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
7.
Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by or deductible in determining the profits attributable to such permanent establishment, then such interest shall be deemed to arise in the State in which the permanent establishment is situated.
8.
Where, by reason of a special relationship between the payer and the beneficial owner, or between both of them and some other person, the amount of the interest, having regard to the debt-claim for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention.
9.
No relief shall be available under this Article if it was the main purpose or one of the main purposes of any person concerned with the assignment of the interest, the creation or assignment of the debt-claim or other rights in respect of which the interest is paid, or the establishment, acquisition or maintenance of the person which is the beneficial owner of the interest or the conduct of its operations, to take advantage of this Article. In any case where a Contracting State intends to apply this paragraph, the competent authority of that State shall consult with the competent authority of the other Contracting State.
Article 12 ROYALTIES
1.
Royalties arising in a Contracting State and beneficially owned by a resident of the other Contracting State may be taxed in that other State.
2.
However, such royalties may also be taxed in the Contracting State in which they arise, and according to the laws of that State, but the tax so charged shall not exceed 5 per cent of the gross amount of the royalties.
3.
The term "royalties" as used 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 supply of information concerning technical, industrial, commercial or scientific experience;
c) the supply of any assistance that is 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) or any such information as is mentioned in subparagraph b);
d) the use of, or the right to use:
(i) motion picture films;
(ii) films or audio or video tapes or disks, or any other means of image or sound reproduction or transmission for use in connection with television, radio or other broadcasting;
e) the use of, or the right to use, some or all of the part of the radiofrequency spectrum as specified in a spectrum licence of a Contracting State, where the payment or credit arises in that State; or
f) total or partial forbearance in respect of the use or supply of any property or right referred to in this paragraph.
4.
The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise through a permanent establishment situated therein and the right or property in respect of which the royalties are paid or credited is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
5.
Royalties shall be deemed to arise in a Contracting State when the payer is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment in connection with which the liability to pay the royalties was incurred, and the royalties are borne by or deductible in determining the profits attributable to such permanent establishment, then such royalties shall be deemed to arise in the State in which the permanent establishment is situated.
6.
Where, by reason of a special relationship between the payer and the beneficial owner of the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments or credits shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Convention.
7.
No relief shall be available under this Article if it was the main purpose or one of the main purposes of any person concerned with an assignment of the royalties, or with the creation or assignment of the rights in respect of which the royalties are paid or credited, to take advantage of this Article by means of that creation or assignment. In any case where a Contracting State intends to apply this paragraph, the competent authority of that State shall consult with the competent authority of the other Contracting State.
Article 13 ALIENATION OF PROPERTY
1.
Income, profits or gains derived by a resident of a Contracting State from the alienation of real property referred to in Article 6 and situated in the other Contracting State may be taxed in that other State.
2.
Income, profits or gains from the alienation of property (other than real property) forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise), may be taxed in that other State.
3.
Income, profits or gains of an enterprise of a Contracting State from the alienation of ships or aircraft operated by that enterprise in international traffic, or of property (other than real property) pertaining to the operation of such ships or aircraft, shall be taxable only in that State.
4.
Income, profits or gains derived by a resident of a Contracting State from the alienation of any shares or comparable interests deriving more than 50 per cent of their value directly or indirectly from real property situated in the other Contracting State may be taxed in that other State.
5.
Gains of a capital nature from the alienation of any property, other than that referred to in the preceding paragraphs, shall be taxable only in the Contracting State of which the alienator is a resident.
6.
Where an individual who upon ceasing to be a resident of a Contracting State, is treated under the taxation law of that State as having alienated any property and is taxed in that State by reason thereof, the individual may elect to be treated for the purposes of taxation in the other Contracting State as if the individual had, immediately before ceasing to be a resident of the first-mentioned State, alienated and reacquired the property for an amount equal to its fair market value at that time.
7.
The provisions of this Article shall not affect the right of Australia to tax, in accordance with its laws, income, profits or gains from the alienation of any property derived by a person who is a resident of Australia at any time during the year of income in which the property is alienated, or has been so resident at any time during the 6 years immediately preceding that year.
Article 14 INCOME FROM EMPLOYMENT
1.
Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State.
2.
Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the year of income of that other State, and
b) the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State, or is borne by or deductible in determining the profits attributable to a permanent establishment which the employer has in the first-mentioned State, and
c) the remuneration is neither borne by nor deductible in determining the profits attributable to a permanent establishment which the employer has in the other State.
3.
Notwithstanding the preceding provisions of this Article, remuneration derived by a resident of a Contracting State in respect of an employment exercised aboard a ship or aircraft operated in international traffic shall be taxable only in that State.
4.
Notwithstanding the preceding provisions of this Article, remuneration derived by an individual who is a resident of a Contracting State in respect of a secondment to the other Contracting State shall be taxable only in the first-mentioned State where the individual is present in the other State for a period or periods not exceeding in the aggregate 90 days in any twelve month period.
5.
For the purposes of paragraph 4, "secondment to the other Contracting State" means an arrangement pursuant to which an employee of an enterprise of a Contracting State, being the enterprise with which the employee has a formal contract of employment, temporarily performs employment services in the other State for a permanent establishment of the enterprise situated in that other State, or for an associated enterprise (as referred to in subparagraph c) of paragraph 6 of Article 5), where such employment services are of a similar nature to those ordinarily performed by that employee for the first-mentioned enterprise. However, it does not include an arrangement that has as one of its main purposes the obtaining of benefits under paragraph 4.
Article 15 FRINGE BENEFITS
1.
Where, except for the application of this Article, a fringe benefit is taxable in both Contracting States the benefit will be taxable only in the Contracting State that has the sole or primary taxing right in accordance with the Convention in respect of salary or wages from the employment to which the benefit relates.
2.
For the purposes of this Article:
a) "fringe benefit" includes a benefit provided to an employee or to an associate of an employee by:
(i) an employer;
(ii) an associate of an employer; orand includes an accommodation allowance or housing benefit so provided but does not include a benefit arising from the acquisition of an option over shares under an employee share scheme;
(iii) a person under an arrangement between that person and the employer, associate of an employer or another person in respect of the employment of that employee,
b) a Contracting State has a "primary taxing right" to the extent that a taxing right in respect of salary or wages from the relevant employment is allocated to that State in accordance with this Convention and the other Contracting State is required to provide relief for the tax imposed in respect of such remuneration by the first-mentioned State.
Article 16 DIRECTORS' FEES
Directors' fees and other similar payments derived by a resident of a Contracting State in that person's capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State. Article 17 ENTERTAINERS AND SPORTSPERSONS
1.
Notwithstanding the provisions of Articles 7 and 14, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson, from that person's personal activities as such exercised in the other Contracting State, may be taxed in that other State.
2.
Where income in respect of personal activities exercised by an entertainer or a sportsperson in that person's capacity as such accrues not to the entertainer or sportsperson but to another person, that income may, notwithstanding the provisions of Articles 7 and 14, be taxed in the Contracting State in which the activities of the entertainer or sportsperson are exercised.
3.
The provisions of paragraphs 1 and 2 shall not apply to the income derived in respect of personal activities exercised by a sportsperson as a member of a recognised team regularly playing in a league competition organised and conducted in both Contracting States, except in respect of performance as a member of a national representative team of either Contracting State. In such case the provisions of Article 7 or 14, as the case may be, shall apply.
Article 18 PENSIONS
1.
Pensions (including government pensions) and other similar periodic remuneration paid to a resident of a Contracting State shall be taxable only in that State. However, such income arising in the other Contracting State (other than payments of portable New Zealand superannuation or portable veteran's pension or equivalent portable payments arising in New Zealand) shall not be taxed in the first-mentioned State to the extent that such income would not be subject to tax in the other State if the recipient were a resident of that other State.
2.
Lump sums arising in a Contracting State and paid to a resident of the other Contracting State under a retirement benefit scheme, or in consequence of retirement, invalidity, disability or death, or by way of compensation for injuries, shall be taxable only in the first-mentioned State.
3.
Any alimony or other maintenance payment arising in a Contracting State and paid to a resident of the other Contracting State shall be taxable only in the first-mentioned State.
Article 19 GOVERNMENT SERVICE
1.
a) Salaries, wages and other similar remuneration (other than a pension) paid by a Contracting State or a political subdivision or local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.
b) However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who:
(i) is a national of that State; or
(ii) did not become a resident of that State solely for the purpose of rendering the services.
2.
The provisions of Articles 14, 16 and 17 shall apply to salaries, wages and other similar remuneration paid in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or local authority thereof.
Article 20 STUDENTS
Payments which a student or business apprentice who is or was immediately before visiting a Contracting State a resident of the other Contracting State and who is temporarily present in the first-mentioned State solely for the purpose of their education or training receives for the purpose of their maintenance, education or training shall not be taxed in that State, provided that such payments arise from sources outside that State. Article 21 OTHER INCOME
1.
Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Convention shall be taxable only in that State.
2.
The provisions of paragraph 1 shall not apply to income, other than income from real property as defined in paragraph 2 of Article 6, derived by a resident of a Contracting State who carries on business in the other Contracting State through a permanent establishment situated therein and the right or property in respect of which the income is paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
3.
Notwithstanding the provisions of paragraphs 1 and 2, items of income of a resident of a Contracting State not dealt with in the foregoing Articles of the Convention and arising in the other Contracting State may also be taxed in the other Contracting State.
Article 22 SOURCE OF INCOME
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8 and 10 to 19 may be taxed in the other Contracting State shall for the purposes of the law of that other Contracting State relating to its tax be deemed to arise from sources in that other Contracting State.CHAPTER IV ELIMINATION OF DOUBLE TAXATION
Article 23 ELIMINATION OF DOUBLE TAXATION
1.
Subject to the provisions of the laws of Australia which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article), New Zealand tax paid under the laws of New Zealand and in accordance with this Convention, in respect of income derived by a resident of Australia shall be allowed as a credit against Australian tax payable in respect of that income.
2.
Subject to the provisions of the laws of New Zealand which relate to the allowance of a credit against New Zealand income tax of tax paid in a country outside New Zealand (which shall not affect the general principle of this Article), Australian tax paid under the laws of Australia and in accordance with this Convention, in respect of income derived by a resident of New Zealand (excluding, in the case of a dividend, tax paidin respect of the profits out of which the dividend is paid) shall be allowed as a credit against New Zealand tax payable in respect of that income.
3.
Where, in accordance with paragraph 2 of Article 1, an item of income is taxed in a Contracting State in the hands of a person that is fiscally transparent under the laws of the other State, and is also taxed in the hands of a resident of that other State as a participant in such person, that other State shall provide relief in respect of taxes imposed in the first-mentioned State on that item of income in accordance with the provisions of this Article.
CHAPTER V SPECIAL PROVISIONS
Article 24 NON-DISCRIMINATION
1.
Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith, which is more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, in particular with respect to residence, are or may be subjected. This provision shall, notwithstanding the provisions of Article 1, also apply to persons who are not residents of one or both of the Contracting States.
2.
The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities in similar circumstances. This provision shall not be construed as obliging a Contracting State to grant to individuals who are residents of the other Contracting State any of the personal allowances, reliefs and reductions for tax purposes which are granted to its own residents.
3.
Except where the provisions of paragraph 1 of Article 9, paragraph 8 of Article 11, or paragraph 6 of Article 12, apply, interest, royalties and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the first-mentioned State.
4.
Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned State to any taxation or any requirement connected therewith which is more burdensome than the taxation and connected requirements to which other similar enterprises of the first-mentioned State in similar circumstances are or may be subjected.
5.
This Article shall not apply to any provision of the laws of a Contracting State which:
a) is designed to prevent the avoidance or evasion of taxes;
b) does not permit the deferral of tax arising on the transfer of an asset where the subsequent transfer of the asset by the transferee would be beyond the taxing jurisdiction of the Contracting State under its laws;
c) provides for consolidation of group entities for treatment as a single entity for tax purposes provided that a company, being a resident of that State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, may access such consolidation treatment on the same terms and conditions as other companies that are residents of the first-mentioned State;
d) provides for the transfer of losses within a group of companies;
e) does not allow tax rebates, credits or an exemption in relation to dividends paid by a company that is a resident of that State for purposes of its tax;
f) provides deductions to eligible taxpayers for expenditure on research and development; or
g) is otherwise agreed to be unaffected by this Article in an Exchange of Notes between the Contracting States.
6.
In this Article, provisions of the laws of a Contracting State which are designed to prevent avoidance or evasion of taxes include:
a) measures designed to address thin capitalisation, dividend stripping and transfer pricing;
b) controlled foreign company, transferor trusts and foreign investment fund rules; and
c) measures designed to ensure that taxes can be effectively collected and recovered, including conservancy measures.
7.
The provisions of this Article shall, notwithstanding the provisions of Article 2, apply to taxes of every kind and description imposed on behalf of the Contracting States, or their political subdivisions.
Article 25 MUTUAL AGREEMENT PROCEDURE
1.
Where a person considers that the actions of one or both of the Contracting States result or will result for the person in taxation not in accordance with the provisions of this Convention, the person may, irrespective of the remedies provided by the domestic law of those States, present a case to the competent authority of the Contracting State of which the person is a resident or, if the case comes under paragraph 1 of Article 24, to that of the Contracting State of which the person is a national. The case must be presented within three years from the first notification of the action resulting in taxation not in accordance with the provisions of the Convention.
2.
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with the Convention. Any agreement reached shall be implemented notwithstanding any time limits in the domestic law of the Contracting States.
3.
The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Convention. They may also consult together for the elimination of double taxation in cases not provided for in the Convention.
4.
The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs.
5.
For the purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of this Convention may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph 3 of this Article or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States.
6.
Where,
a) under paragraph 1, a person has presented a case to the competent authority of a Contracting State on the basis that the actions of one or both of the Contracting States have resulted for that person in taxation not in accordance with the provisions of this Convention, and
b) the competent authorities are unable to reach an agreement to resolve that case pursuant to paragraph 2 within two years from the presentation of the case to the competent authority of the other Contracting State,any unresolved issues arising from the case shall be submitted to arbitration if the person so requests. These unresolved issues shall not, however, be submitted to arbitration if a decision on these issues has already been reserved or rendered by a court or administrative tribunal of either State. Unless a person directly affected by the case does not accept the mutual agreement that implements the arbitration decision, that decision shall be binding on both Contracting States and shall be implemented notwithstanding any time limits in the domestic laws of these States. The competent authorities of the Contracting States shall by mutual agreement settle the mode of application of this paragraph.
7.
The issues to which the provisions of paragraph 6 apply are:
a) issues of fact; and
b) issues which the Government of Australia and the Government of New Zealand agree, in an Exchange of Notes, shall be covered by the provisions of paragraph 6.
Article 26 EXCHANGE OF INFORMATION
1.
The competent authorities of the Contracting States shall exchange such information as is forseeably relevant for carrying out the provisions of this Convention or to the administration or enforcement of the domestic laws concerning taxes of every kind and description imposed, in the case of Australia, under the federal tax laws administered by the Commissioner of Taxation, and in the case of New Zealand, under its tax laws, insofar as the taxation thereunder is not contrary to the Convention. The exchange of information is not restricted by Articles 1 and 2.
2.
Any information received under paragraph 1 by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to, the taxes referred to in paragraph 1, or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions. Notwithstanding the foregoing, information received by a Contracting State may be used for other purposes when such information may be used for such other purposes under the laws of both States and the competent authority of the supplying State authorises such use.
3.
In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation:
a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;
b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public).
4.
If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other State may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting State to decline to supply information solely because it has no domestic interest in such information.
5.
In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person.
Article 27 ASSISTANCE IN THE COLLECTION OF TAXES
1.
The Contracting States shall lend assistance to each other in the collection of revenue claims. This assistance is not restricted by Articles 1 and 2. The competent authorities of the Contracting States may by mutual agreement settle the mode of application of this Article.
2.
The term "revenue claim" as used in this Article means an amount owed in respect of taxes of everykind and description imposed, in the case of Australia, under the federal tax laws administered by the Commissioner of Taxation, and in the case of New Zealand, under its tax laws, insofar as the taxation thereunder is not contrary to this Convention or any other instrument to which the Contracting States are parties, as well as interest, administrative penalties and costs of collection or conservancy related to such amount.
3.
When a revenue claim of a Contracting State is enforceable under the laws of that State and is owed by a person who, at that time, cannot, under the laws of that State, prevent its collection, that revenue claim shall, at the request of the competent authority of that State, be accepted for purposes of collection by the competent authority of the other Contracting State. That revenue claim shall be collected by that other State in accordance with the provisions of its laws applicable to the enforcement and collection of its own taxes as if the revenue claim were a revenue claim of that other State.
4.
When a revenue claim of a Contracting State is a claim in respect of which that State may, under its law, take measures of conservancy with a view to ensure its collection, that revenue claim shall, at the request of the competent authority of that State, be accepted for purposes of taking measures of conservancy by the competent authority of the other Contracting State. That other State shall take measures of conservancy in respect of that revenue claim in accordance with the provisions of its laws as if the revenue claim were a revenue claim of that other State even if, at the time when such measures are applied, the revenue claim is not enforceable in the first-mentioned State or is owed by a person who has a right to prevent its collection.
5.
Notwithstanding the provisions of paragraphs 3 and 4, a revenue claim accepted by a Contracting State for purposes of paragraph 3 or 4 shall not, in that State, be subject to the time limits or accorded any priority applicable to a revenue claim under the laws of that State by reason of its nature as such. In addition, a revenue claim accepted by a Contracting State for the purposes of paragraph 3 or 4 shall not, in that State, have any priority applicable to that revenue claim under the laws of the other Contracting State.
6.
Proceedings with respect to the existence, validity or the amount of a revenue claim of a Contracting State shall not be brought before the courts or administrative bodies of the other Contracting State.
7.
Where, at any time after a request has been made by a Contracting State under paragraph 3 or 4 and before the other Contracting State has collected and remitted the relevant revenue claim to the first-mentioned State, the relevant revenue claim ceases to be
a) in the case of a request under paragraph 3, a revenue claim of the first-mentioned State that is enforceable under the laws of that State and is owed by a person who, at that time, cannot, under the laws of that State, prevent its collection, or
b) in the case of a request under paragraph 4, a revenue claim of the first-mentioned State in respect of which that State may, under its laws, take measures of conservancy with a view to ensure its collectionthe competent authority of the first-mentioned State shall promptly notify the competent authority of the other State of that fact and, at the option of the other State, the first-mentioned State shall either suspend or withdraw its request.
8.
In no case shall the provisions of this Article be construed so as to impose on a Contracting State the obligation:
a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;
b) to carry out measures which would be contrary to public policy (ordre public);
c) to provide assistance if the other Contracting State has not pursued all reasonable measures of collection or conservancy, as the case may be, available under its laws or administrative practice;
d) to provide assistance in those cases where the administrative burden for that State is clearly disproportionate to the benefit to be derived by the other Contracting State;
e) to provide assistance if that State considers that the taxes with respect to which assistance is requested are imposed contrary to generally accepted taxation principles.
Article 28 MEMBERS OF DIPLOMATIC MISSIONS AND CONSULAR POSTS
Nothing in this Convention shall affect the fiscal privileges of members of diplomatic missions or consular posts under the general rules of international law or under the provisions of special international agreements.CHAPTER VI FINAL PROVISIONS
Article 29 MISCELLANEOUS
1.
The Contracting States shall consult each other at intervals of not more than five years regarding the terms, operation and application of the Convention with a view to ensuring that it continues to serve the purposes of avoiding double taxation and preventing fiscal evasion. The first such consultation shall take place no later than the end of the fifth year after the entry into force of the Convention.
2.
With reference to Article 11, if in any future tax treaty with any other State, New Zealand should provide for more favourable treatment of interest derived by financial institutions, New Zealand shall without undue delay inform Australia and shall enter into negotiations with Australia with a view to providing the same treatment.
Article 30 ENTRY INTO FORCE
1.
The Contracting States shall notify each other in writing through the diplomatic channel of the completion of their domestic requirements for the entry into force of this Convention. The Convention shall enter into force on the date of the last notification, and thereupon the Convention shall have effect:
a) in the case of Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after the first day of the second month next following the date on which the Convention enters into force;
(ii) in respect of fringe benefits tax, in relation to fringe benefits provided on or after 1 April next following the date on which the Convention enters into force;
(iii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July next following the date on which the Convention enters into force;
b) in the case of New Zealand:
(i) in respect of withholding tax on income, profits or gains derived by a non-resident, for amounts paid or credited on or after the first day of the second month next following the date on which the Convention enters into force;
(ii) in respect of other New Zealand tax, for any income year beginning on or after 1 April next following the date on which the Convention enters into force.
2.
Notwithstanding paragraph 1, paragraphs 6 and 7 of Article 25 shall have effect from the date agreed in an exchange of notes through the diplomatic channel.
3.
The Agreement between the Government of Australia and the Government of New Zealand for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income signed at Melbourne on 27 January 1995, as modified by the Protocol signed at Melbourne on 15 November 2005 (hereinafter referred to as "the 1995 Agreement"), shall cease to have effect with respect to taxes to which this Convention applies in accordance with the provisions of paragraph 1. The 1995 Agreement shall terminate on the last date on which it has effect in accordance with the foregoing provisions of this paragraph.
Article 31 TERMINATION
This Convention shall continue in effect indefinitely, but either Contracting State may terminate the Convention by giving written notice of termination, through the diplomatic channel, to the other State at least six months before the end of any calendar year beginning after the expiration of five years from the date of its entry into force and, in that event, the Convention shall cease to be effective:
a) in the case of Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after the first day of the second month next following the date on which the notice of termination is given;
(ii) in respect of fringe benefits tax, in relation to fringe benefits provided on or after 1 April next following the date on which the notice of termination is given;
(iii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July next following the date on which the notice of termination is given;
b) in the case of New Zealand:
(i) in respect of withholding tax on income, profits or gains derived by a non-resident, for amounts paid or credited on or after the first day of the second month next following the date on which the notice of termination is given;
(ii) in respect of other New Zealand tax, for any income year beginning on or after 1 April next following the date on which the notice of termination is given.IN WITNESS WHEREOF the undersigned, being duly authorised, have signed this Convention.
DONE at Paris this 26th day of June 2009, in duplicate in the English language.
FOR AUSTRALIA: FOR NEW ZEALAND: Hon. Simon Crean
Minister for TradeHon. Tim Groser
Minister for Trade[Signatures omitted] Sch 4 and 4A substituted by No 13 of 2010, s 3 and Sch 1 item 18, effective 11 March 2010. The convention came into force 19 March 2010, see Art 30 for rules concerning entry into force. The Agreement formerly read:
SCHEDULE 4 - New Zealand Agreement
Section 3
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF NEW ZEALAND FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOMEas amended by Sch 4A the New Zealand Protocol
ARTICLE 1 Personal scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes covered
1.
The existing taxes to which this Agreement shall apply are:
(a) In New Zealand:
the income tax and the fringe benefit tax;
(b) In Australia:
the income tax, the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources and the fringe benefits tax imposed under the federal law of Australia.
2.
This Agreement shall apply also to any identical or substantially similar taxes which are imposed under the federal law of Australia or the law of New Zealand after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other within a reasonable period of time of any significant changes which have been made in the law of their respective States relating to the taxes to which this Agreement applies.
3.
Notwithstanding paragraphs 1 and 2, the taxes to which Articles 26 and 27 shall apply are:
(a) in the case of New Zealand, taxes of every kind and description imposed under its tax laws; and
(b) in the case of Australia, taxes of every kind and description imposed under the federal tax laws administered by the Commissioner of Taxation.
HistoryArt 2 amended by Sch 4A (the New Zealand Protocol) Art 1, by inserting para (3), effective 22 January 2007.
ARTICLE 3 General definitions
1.
For the purposes of this Agreement, unless the context otherwise requires:
(a)
(i) the term "New Zealand" means the territory of New Zealand but does not include Tokelau or the Associated Self Governing States of the Cook Islands and Niue; it also includes any area beyond the territorial sea which by New Zealand legislation and in accordance with international law has been, or may hereafter be, designated as an area in which the rights of New Zealand with respect to natural resources may be exercised;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 seabed and subsoil of the continental shelf;
(ii) the term "Australia", when used in a geographical sense, excludes all external territories other than:
(A) the Territory of Norfolk Island;
(B) the Territory of Christmas Island;
(C) the Territory of Cocos (Keeling) Islands;
(D) the Territory of Ashmore and Cartier Islands;
(E) the Territory of Heard Island and McDonald Islands; and
(F) the Coral Sea Islands Territory,
(b) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(c) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(d) the term "competent authority" means:
(i) in the case of New Zealand, the Commissioner of Inland Revenue or an authorised representative of the Commissioner; and
(ii) in the case of Australia, the Commissioner of Taxation or an authorised representative of the Commissioner;
(e) the terms "a Contracting State" and "other Contracting State" mean New Zealand or Australia, the Governments of which have concluded this Agreement, as the context requires;
(f) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;
(g) the term "international traffic" means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely from a place or between places in the other Contracting State;
(h) the term "New Zealand tax" means tax imposed by New Zealand, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "paid", in relation to any amount, includes distributed (whether in cash or other property), credited or dealt with on behalf of a person or at that person's direction; and the terms "pay", "payable" and "payment" have corresponding meanings;
(j) the term "person" includes an individual, a company and any other body of persons;
(k) the term "tax" means New Zealand tax or Australian tax, as the context requires, but does not include any penalty or interest imposed under the law of either Contracting State relating to its tax.
2.
For the purposes of Articles 10, 11 and 12, a trustee subject to tax in a Contracting State in respect of dividends, interest or royalties shall be deemed to be beneficially entitled to such dividends, interest or royalties.
3.
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the law of that State from time to time in force relating to the taxes to which this Agreement applies.
ARTICLE 4 Residence
1.
For the purposes of this Agreement, a person is a resident of a Contracting State:
(a) in the case of New Zealand, if the person is resident in New Zealand for the purposes of New Zealand tax; and
(b) in the case of Australia, if the person is a resident of Australia for the purposes of Australian tax.
2.
A person is not a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
3.
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the status of the person shall be determined in accordance with the following rules:
(a) the person shall be deemed to be a resident solely of the State in which a permanent home is available to the person; if a permanent home is available to the person in both States, the person shall be deemed to be a resident solely of the State with which the person's personal and economic relations are closer;
(b) if the person is unable to be deemed to be a resident solely of a State in accordance with the provisions of subparagraph (a), the person shall be deemed to be a resident solely of the State in which the person has an habitual abode;
(c) if the person has an habitual abode in both States or in neither of them, the person shall be deemed to be a resident solely of the State of which the person is a citizen.
4.
Where by reason of the provisions of paragraphs 1 and 2 a person other than an individual is a resident of both Contracting States then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent establishment
1.
For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
2.
The term "permanent establishment" includes especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources; and
(g) an agricultural, pastoral or forestry property.
3.
A building site, or a construction, installation or assembly project constitutes a permanent establishment if it lasts for more than 6 months.
4.
An enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if:
(a) it carries on supervisory activities in that State for more than 6 months in connection with a building site or a construction, installation or assembly project which is being undertaken in that State; or
(b) in that State it carries on activities which consist of, or which are connected with, the exploration for or exploitation of natural resources situated in that State; or
(c) substantial equipment is being used in that State by, for or under contract with the enterprise; or
(d) it performs in that State any operations for the felling, removal or other exploitation of standing timber.
5.
For the purposes of determining the duration of activities under paragraph 3 and subparagraph 4(a), the period during which activities are carried on in a Contracting State by an enterprise associated with another enterprise shall be aggregated with the period during which activities are carried on by the enterprise with which it is associated if the firstmentioned activities are connected with the activities carried on in that State by the lastmentioned enterprise, provided that any period during which two or more associated enterprises are carrying on concurrent activities is counted only once. An enterprise shall be deemed to be associated with another enterprise if one is controlled directly or indirectly by the other, or if both are controlled directly or indirectly by a third person or persons.
6.
An enterprise shall not be deemed to have a "permanent establishment" merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; or
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; or
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; or
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or of collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character, such as advertising or scientific research.
7.
Notwithstanding the provisions of paragraphs 1 and 2, a person acting in a Contracting State on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph 8 applies - shall be deemed to be a permanent establishment of that enterprise in the firstmentioned State if:
(a) the person has and habitually exercises in the firstmentioned State an authority to conclude contracts on behalf of that enterprise, unless the activities of that person are limited to those described in paragraph 6 and, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph; or
(b) in so acting, the person manufactures or processes in that State for the enterprise goods or merchandise belonging to that enterprise.
8.
An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a person who is a broker, general commission agent or any other agent of an independent status and is acting in the ordinary course of the person's business as such a broker or agent.
9.
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
10.
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph 5 of Article 11 and paragraph 5 of Article 12 whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of a Contracting State, has a permanent establishment in a Contracting State.
ARTICLE 6 Income from real property
1.
Income derived by a resident of a Contracting State from real property situated in the other Contracting State may be taxed in that other State.
2.
The term "real property" shall have the meaning which it has under the law of the Contracting State in which that property is situated and shall in any case include:
(a) a lease of land and any other interest in or over land, whether that land is improved or not;
(b) a right to explore for or exploit mineral, oil or gas deposits, or other natural resources;
(c) a right to receive variable or fixed payments either:
(i) as consideration for or in respect of the exploitation of, ormineral, oil or gas deposits, or other natural resources.
(ii) for the right to explore for or exploit,
3.
The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of real property.
4.
Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration or exploitation may take place.
5.
The provisions of paragraphs 1, 3 and 4 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.
ARTICLE 7 Business profits
1.
The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated in that other State. If the enterprise carries on business in that manner, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
2.
Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated in that other State, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
3.
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred), whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere. However, no deduction is allowable in respect of expenses which are not deductible under the law of the Contracting State in which the permanent establishment is situated.
4.
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5.
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
6.
For the purposes of the preceding paragraphs of this Article, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.
7.
Where:
(a) a resident of a Contracting State is beneficially entitled, whether directly or through one or more interposed trusts, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust other than a trust which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated in that other State and that share of business profits shall be attributed to that permanent establishment.
8.
Where profits include items of income or gains which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
9.
Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on any income, profits or gains from the business of any form of insurance. Provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
ARTICLE 8 Ships and aircraft
1.
Profits from ship or aircraft operations derived by a resident of a Contracting State shall be taxable only in that State.
2.
Notwithstanding the provisions of paragraph 1, such profits may be taxed in the other Contracting State where they are profits from ship or aircraft operations confined solely to places in that other State.
3.
The provisions of paragraphs 1 and 2 shall apply in relation to the share of the profits from ship or aircraft operations derived by a resident of a Contracting State through participation in a pool service, in a joint business or operating organisation or in an international operating agency.
4.
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise which are shipped in a Contracting State for discharge at a place in that State shall be treated as profits from ship or aircraft operations confined solely to places in that State.
ARTICLE 9 Associated enterprises
1.
Where:
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2.
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the income to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
3.
Where profits on which an enterprise of a Contracting State has been charged to tax in that State are also included, by virtue of paragraph 1 or 2, in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the firstmentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the firstmentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
1.
Dividends paid by a company which is a resident of a Contracting State for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
Those dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends. Provided that any deemed dividend arising from the business of life insurance consequent upon an election made and approved under section 204M of the Income Tax Act 1976 of New Zealand, or any legislation enacted in substitution for that section, shall be taxed at a rate not exceeding 5 per cent of the gross amount of such dividend.
3.
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the law, relating to tax, of the Contracting State of which the company making the payment is a resident for the purposes of its tax.
4.
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In that case, the provisions of Article 7 or 14, as the case may be, shall apply.
5.
Dividends paid by a company which is a resident of a Contracting State, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except in so far as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. This paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also resident in New Zealand for the purposes of New Zealand tax.
[ CCH Note: Art 5 of Sch 4A (the New Zealand Protocol) contains the following statement in relation to this Article:
]With reference to Articles 10, 11 and 12, if in any future Agreement with any other State, New Zealand should limit its taxation at source of dividends, interest or royalties to a rate lower than the one provided for in any of those Articles, the Government of New Zealand shall without undue delay inform the Government of Australia and shall enter into negotiations with the Government of Australia with a view to providing the same treatment.
ARTICLE 11 Interest
1.
Interest arising in a Contracting State, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
That interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3.
The term "interest" in this Article includes interest on indebtedness of every kind, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and in particular, interest from government securities and income from bonds or debentures, including premiums and prizes attaching to such bonds or debentures, as well as all other income assimilated to income from money lent by the law, relating to tax, of the Contracting State in which the income arises, but does not include any income which is treated as a dividend under Article 10.
4.
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the interest, being a resident of a Contracting State, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the indebtedness in respect of which the interest is paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or 14, as the case may be, shall apply.
5.
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or a local authority of that State, or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and that interest is deductible in determining the income, profits or gains attributable to that permanent establishment or fixed base, then the interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6.
Where, by reason of a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon in the absence of that relationship by the payer and the person beneficially entitled, the provisions of this Article shall apply only to the lastmentioned amount. In that case the excess part of the amount of the interest paid shall remain taxable according to the law, relating to tax, of each Contracting State, subject to the other provisions of this Agreement.
[ CCH Note: Art 5 of Sch 4A (the New Zealand Protocol) contains the following statement in relation to this Article:
]With reference to Articles 10, 11 and 12, if in any future Agreement with any other State, New Zealand should limit its taxation at source of dividends, interest or royalties to a rate lower than the one provided for in any of those Articles, the Government of New Zealand shall without undue delay inform the Government of Australia and shall enter into negotiations with the Government of Australia with a view to providing the same treatment.
ARTICLE 12 Royalties
1.
Royalties arising in a Contracting State, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
Those royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
3.
The term "royalties" in this Article means payments of any kind, 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, trademark, design or model, plan, secret formula or process, or other like property or right; or
(b) the use of, or the right to use, any industrial, scientific or commercial equipment; or
(c) the supply of scientific, technical, industrial or commercial knowledge or information; or
(d) the supply of any assistance that is 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); or
(e) the use of, or the right to use, any:
(i) motion picture film; or
(ii) film or videotape for use in connection with television; or
(iii) tape for use in connection with radio broadcasting; or
(f) the reception of, or the right to receive, visual images or sounds, or both, transmitted to the public by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; or
(g) the use in connection with television broadcasting or radio broadcasting, or the right to use in connection with television broadcasting or radio broadcasting, visual images or sounds, or both, transmitted by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; or
(h) total or partial forbearance in respect of the use or supply of any property or right referred to in this paragraph.
4.
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the royalties, being a resident of a Contracting State, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the property or right in respect of which the royalties are paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or 14, as the case may be, shall apply.
5.
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are deductible in determining the income, profits or gains attributable to that permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6.
Where, by reason of a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties, having regard to what they are paid for, exceeds the amount which might have been expected to have been agreed upon in the absence of that relationship by the payer and the person beneficially entitled, the provisions of this Article shall apply only to the lastmentioned amount. In that case the excess part of the amount of the royalties paid shall remain taxable according to the law, relating to tax, of each Contracting State, subject to the other provisions of this Agreement.
[ CCH Note: Art 5 of Sch 4A (the New Zealand Protocol) contains the following statement in relation to this Article:
]With reference to Articles 10, 11 and 12, if in any future Agreement with any other State, New Zealand should limit its taxation at source of dividends, interest or royalties to a rate lower than the one provided for in any of those Articles, the Government of New Zealand shall without undue delay inform the Government of Australia and shall enter into negotiations withthe Government of Australia with a view to providing the same treatment.
ARTICLE 13 Alienation of property
1.
Income, profits or gains derived by a resident of a Contracting State from the alienation of real property situated in the other Contracting State may be taxed in that other State.
2.
Income, profits or gains from the alienation of property, other than real property, forming part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or pertaining to a fixed base available to a resident of a Contracting State in the other Contracting State for the purpose of performing independent personal services, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise) or of that fixed base, may be taxed in that other State.
3.
Income, profits or gains derived by a resident of a Contracting State from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of real property situated in the other Contracting State, may be taxed in that other State.
4.
Income, profits or gains from the alienation of ships or aircraft operated in international traffic, or of property (other than real property) pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State in which the enterprise alienating such ships, aircraft or other property is a resident.
5.
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of any property other than that to which any of the preceding paragraphs of this Article apply.
6.
In this Article, the term "real property" has the same meaning as it has in Article 6.
7.
For the purposes of this Article, the situation of real property shall be determined in accordance with paragraph 4 of Article 6.
ARTICLE 14 Independent personal services
1.
Income derived by an individual who is a resident of a Contracting State in respect of professional services or other independent activities shall be taxable only in that State unless such services are performed in the other Contracting State and:
(a) the individual is present in the other State for a period or periods exceeding in the aggregate 183 days in any 12 month period commencing or ending in the year of income concerned; or
(b) a fixed base is regularly available to the individual in the other State for the purpose of performing the individual's activities.If the provisions of subparagraphs (a) or (b) are satisfied, the income may be taxed in that other State but only so much of it as is attributable to activities performed during such period or periods or from that fixed base.
2.
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the performance of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent personal services
1.
Subject to the provisions of Articles 16, 17, 19 and 20, salaries, wages and other similar remuneration derived by an individual who is a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
2.
Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the firstmentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in any 12 month period commencing or ending in the year of income concerned; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining the taxable profits of a permanent establishment or fixed base which the employer has in that other State; and
(d) the remuneration is, or upon application of this Article will be, subject to tax in the firstmentioned State.
3.
Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of a Contracting State may be taxed in that State.
ARTICLE 16 Fringe benefits
1.
Where except for the application of this Article, a fringe benefit would be subject to tax in both Contracting States the benefit will be taxable solely in the Contracting State which has the sole or primary taxing right in respect of the remuneration from the employment to which the benefit relates.
2.
For the purposes of this Article:
(a) "fringe benefit" includes a benefit provided to an employee or to an associate of an employee by:
(i) an employer,
(ii) an associate of an employer, orand includes an accommodation allowance or housing benefit so provided;
(iii) a person under an arrangement between that person and the employer, associate of an employer, or another person in respect of the employment of that employee,
(b) a Contracting State has a "primary taxing right" if it has a taxing right under this Agreement in respect of the remuneration for the relevant employment and the other Contracting State is required under this Agreement to allow relief for any taxes imposed in respect of such remuneration by the first Contracting State.
ARTICLE 17 Directors' fees
Directors' fees and similar payments derived by a resident of a Contracting State in that person's capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 18 Entertainers
1.
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes, musicians, athletes and other sportspersons) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
2.
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
3.
The provisions of paragraphs 1 and 2 shall not apply to the income of a sportsperson, being a resident of one or both of the Contracting States for the purposes of its tax, derived as a member or associate of a recognised team regularly playing in a league competition organised and conducted solely in both Contracting States, except in respect of performance as a member or associate of a national representative team of either Contracting State.
4.
The term "associate", as used in paragraph 3 includes any manager, coach, trainer, runner, physician, physiotherapist or other provider of a like support service.
ARTICLE 19 Pensions and annuities
1.
Pensions (including government pensions) and annuities paid to a resident of a Contracting State shall be taxable only in that State.
2.
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
3.
Any alimony or other maintenance payment arising in a Contracting State and paid to a resident of the other Contracting State shall be taxable only in the firstmentioned State.
ARTICLE 20 Government service
1.
Remuneration (other than a pension or annuity) paid by the Government of Australia, any Australian State, the Australian Capital Territory or the Northern Territory, or any other Australian political subdivision or local authority to an individual in respect of services rendered to any such government in the discharge of governmental functions shall be exempt from New Zealand tax if the individual is not a resident of New Zealand for the purposes of New Zealand tax or is resident in New Zealand for the purposes of New Zealand tax solely for the purpose of rendering those services.
2.
Remuneration (other than a pension or annuity) paid by the Government of New Zealand, a New Zealand political subdivision or local authority to an individual in respect of services rendered to that Government, subdivision or authority in the discharge of governmental functions shall be exempt from Australian tax if the individual is not a resident of Australia for the purposes of Australian tax or is resident in Australia for the purposes of Australian tax solely for the purpose of rendering those services.
3.
The provisions of paragraphs 1 and 2 shall not apply to remuneration in respect of services rendered in connection with anytrade or business carried on by a government referred to in those paragraphs. In that case the provisions of Article 15 or 17, as the case may be, shall apply.
ARTICLE 21 Students
Where a student, who is a resident of a Contracting State or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of the student's education, receives payments from sources outside that other State for the purpose of the student's maintenance or education, those payments shall be exempt from tax in that other State.ARTICLE 22 Other income
1.
Items of income of a resident of a Contracting State, wherever arising, not dealt with in the preceding Articles of this Agreement shall be taxable only in that State except that if such income is derived from sources within the other Contracting State, that income may also be taxed in that other State.
2.
The provisions of paragraph 1 shall not apply to income, other than income from real property as defined in paragraph 2 of Article 6, derived by a resident of a Contracting State where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In that case the provisions of Article 7 or 14, as the case may be, shall apply.
ARTICLE 23 Source of income
1.
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8, 10 to 20 and 22, may be taxed in the other Contracting State shall, for the purposes of the law of that other Contracting State relating to its tax, be deemed to be income from sources in that other Contracting State.
2.
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8, 10 to 20 and 22, may be taxed in the other Contracting State shall, for the purposes of Article 24 and of the law of the firstmentioned Contracting State relating to its tax, be deemed to be income from sources in the other Contracting State.
ARTICLE 24 Elimination of double taxation
1.
Subject to the provisions of the law of New Zealand from time to time in force which relate to the allowance of a credit against New Zealand income tax of tax paid in a country outside New Zealand (which shall not affect the general principle of this Article), Australian tax paid under the law of Australia and consistently with this Agreement, whether directly or by deduction, in respect of income derived by a resident of New Zealand from sources in Australia (excluding, in the case of a dividend, tax paid in respect of the profits out of which the dividend is paid) shall be allowed as a credit against New Zealand tax payable in respect of that income.
2.
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian income tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article), New Zealand tax paid under the law of New Zealand and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in New Zealand (excluding, in the case of a dividend, tax paid in respect of the profits out of which the dividend is paid) shall be allowed as a credit against Australian income tax payable in respect of that income.
ARTICLE 25 Mutual agreement procedure
1.
Where a person who is a resident of a Contracting State considers that the actions of one or both of the competent authorities of the Contracting States result or will result for the person in taxation not in accordance with the provisions of this Agreement, the person may, irrespective of the remedies provided by the domestic law of the Contracting States, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within three years from the first notification of the action which results in taxation not in accordance with the provisions of this Agreement.
2.
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with the provisions of this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the domestic law of the Contracting States.
3.
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the interpretation or application of the provisions of this Agreement.
4.
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 26 Exchange of Information
1.
The competent authorities of the Contracting States shall exchange such information as is forseeably relevant for carrying out the provisions of this Agreement or to the administration or enforcement of the domestic law concerning taxes referred to in Article 2, insofar as the taxation thereunder is not contrary to the Agreement. The exchange of information is not restricted by Article 1.
2.
Any information received under paragraph 1 by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic law of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to, the taxes referred to in paragraph 1, or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
3.
In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the law and administrative practice of that or of the other Contracting State;
(b) to supply information which is not obtainable by the competent authority under the law or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public).
4.
If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other State may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting State to decline to supply information solely because it has no domestic interest in such information.
5.
In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person.
HistoryArt 26 substituted by Sch 4A (the New Zealand Protocol) Art 2, effective 22 January 2007. Art 26 formerly read:
ARTICLE 26 Exchange of information
1.
The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out the provisions of this Agreement or of the domestic law of the Contracting States concerning the taxes to which this Agreement applies insofar as the taxation under that law is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic law of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies. Such persons or authorities shall use the information only for such purposes.
2.
In no case shall the provisions of paragraph 1 be construed so as to impose on the competent authority of a Contracting State the obligation:
(a) to carry out administrative measures at variance with the law or administrative practice of that or of the other Contracting State;
(b) to supply information which is not obtainable under the law or in the normal course of the administration of that or of the other Contracting State; or
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 27 Assistance in collection of taxes
1.
The Contracting States shall lend assistance to each other in the collection of revenue claims. This assistance is not restricted by Article 1. The competent authorities of the Contracting States may by mutual agreement settle the mode of application of this Article.
2.
The term "revenue claim" as used in this Article means an amount owed in respect of taxes referred to in Article 2, insofar as the taxation thereunder is not contrary to this Agreement or any other instrument to which the Contracting States are parties, as well as interest, administrative penalties and costs of collection or conservancy related to such amount.
3.
When a revenue claim of a Contracting State is enforceable under the law of that State and is owed by a person who, at that time, cannot, under the law of that State, prevent its collection, that revenue claim shall, at the request of the competent authority of that State, be accepted for purposes of collection by the competent authority of the other Contracting State. That revenue claim shall be collected by that other State in accordance with the provisions of its law applicable to the enforcement and collection of its own taxes as if the revenue claim were a revenue claim of that other State.
4.
When a revenue claim of a Contracting State is a claim in respect of which that State may, under its law, take measures of conservancy with a view to ensure its collection, that revenue claim shall, at the request of the competent authority of that State, be accepted for purposes of taking measures of conservancy by the competent authority of the other Contracting State. That other State shall take measures of conservancy in respect of that revenue claim in accordance with the provisions of its law as if the revenue claim were a revenue claim of that other State even if, at the time when such measures are applied, the revenue claim is not enforceable in the first-mentioned State or is owed by a person who has a right to prevent its collection.
5.
Notwithstanding the provisions of paragraphs 3 and 4, a revenue claim accepted by a Contracting State for purposes of paragraph 3 or 4 shall not, in that State, be subject to the time limits or accorded any priority applicable to a revenue claim under the law of that State by reason of its nature as such. In addition, a revenue claim accepted by a Contracting State for the purposes of paragraph 3 or 4 shall not, in that State, have any priority applicable to that revenue claim under the law of the other Contracting State.
6.
Proceedings with respect to the existence, validity or the amount of a revenue claim of a Contracting State shall not be brought before the courts or administrative bodies of the other Contracting State.
7.
Where, at any time after a request has been made by a Contracting State under paragraph 3 or 4 and before the other Contracting State has collected and remitted the relevant revenue claim to the first-mentioned State, the relevant revenue claim ceases to be
(a) in the case of a request under paragraph 3, a revenue claim of the first-mentioned State that is enforceable under the law of that State and is owed by a person who, at that time, cannot, under the law of that State, prevent its collection, or
(b) in the case of a request under paragraph 4, a revenue claim of the first-mentioned State in respect of which that State may, under its law, take measures of conservancy with a view to ensure its collectionthe competent authority of the first-mentioned State shall promptly notify the competent authority of the other State of that fact and, at the option of the other State, the first-mentioned State shall either suspend or withdraw its request.
8.
In no case shall the provisions of this Article be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the law and administrative practice of that or of the other Contracting State;
(b) to carry out measures which would be contrary to public policy (ordre public);
(c) to provide assistance if the other Contracting State has not pursued all reasonable measures of collection or conservancy, as the case may be, available under its law or administrative practice;
(d) to provide assistance in those cases where the administrative burden for that State is clearly disproportionate to the benefit to be derived by the other Contracting State;
(e) to provide assistance if that State considers that the taxes with respect to which assistance is requested are imposed contrary to generally accepted taxation principles.
HistoryArt 27 inserted by Sch 4A (the New Zealand Protocol) Art 4, effective 22 January 2007.
ARTICLE 28 Diplomatic agents and consular officers
Nothing in this Agreement shall affect the fiscal privileges of diplomatic agents or consular officers under the general rules of international law or under the provisions of special international agreements.HistoryArt 28 renumbered from Art 27 by Sch 4A (the New Zealand Protocol) Art 3, effective 22 January 2007.
ARTICLE 29 Entry into force
1.
This Agreement shall enter into force on the last date on which the Contracting States exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in New Zealand and in Australia, as the case may be, and, in that event, this Agreement shall have effect:
(a) in New Zealand:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 April next following the date on which the Agreement enters into force;
(ii) in respect of other New Zealand tax, for any income year beginning on or after 1 April next following the date on which the Agreement enters into force;
(b) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 April next following the date on which the Agreement enters into force;
(ii) in respect of fringe benefits tax, in relation to fringe benefits provided on or after 1 April next following the date on which the Agreement enters into force;
(iii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July next following the date on which the Agreement enters into force.
2.
The Agreement between the Government of the Commonwealth of Australia and the Government of New Zealand signed at Melbourne on 8 November 1972 shall terminate and cease to have effect in relation to any tax in respect of which this Agreement comes into effect in accordance with paragraph 1.
HistoryArt 29 renumbered from Art 28 by Sch 4A (the New Zealand Protocol) Art 3, effective 22 January 2007.
ARTICLE 30 Termination
This Agreement shall continue in effect indefinitely, but either Contracting State may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in New Zealand:
(i) in respect of withholding tax on income that is derived by a non-resident, on or after 1 April in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other New Zealand tax, for any income year beginning on or after 1 April in the calendar year next following that in which the notice of termination is given;
(b) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 April in the calendar year next following that in which the notice of termination is given;
(ii) in respect of fringe benefits tax, in relation to fringe benefits provided on or after 1 April in the calendar year next following that in which the notice of termination is given;
(iii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given.HistoryArt 30 renumbered from Art 29 by Sch 4A (the New Zealand Protocol) Art 3, effective 22 January 2007.
IN WITNESS WHEREOF the undersigned, duly authorised thereto by their respective Governments, have signed this Agreement.
DONE in duplicate at MELBOURNE this 27th day of JANUARY, One thousand nine hundred and ninety-five in the English language.
FOR THE GOVERNMENT OF AUSTRALIA:
RALPH WILLISFOR THE GOVERNMENT OF NEW ZEALAND:
BILL BIRCH
Sch 4 substituted by No 22 of 1995.
History
Sch 4 and 4A substituted by No 13 of 2010, s 3 and Sch 1 item 18, effective 11 March 2010. The new convention came into force 19 March 2010. Sch 4A formerly read:
SCHEDULE 4A - The New Zealand protocol
Note: See section 6C
PROTOCOL AMENDING THE AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF NEW ZEALAND FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1
Article 2 of the Agreement is amended by inserting:
"3.
Notwithstanding paragraphs 1 and 2, the taxes to which Articles 26 and 27 shall apply are:
a) in the case of New Zealand, taxes of every kind and description imposed under its tax laws; and
b) in the case of Australia, taxes of every kind and description imposed under the federal tax laws administered by the Commissioner of Taxation."ARTICLE 2
Article 26 of the Agreement is omitted and the following Article is substituted:"Article 26 Exchange of information
1.
The competent authorities of the Contracting States shall exchange such information as is forseeably relevant for carrying out the provisions of this Agreement or to the administration or enforcement of the domestic law concerning taxes referred to in Article 2, insofar as the taxation thereunder is not contrary to the Agreement. The exchange of information is not restricted by Article 1.
2.
Any information received under paragraph 1 by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic law of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to, the taxes referred to in paragraph 1, or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
3.
In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation:
a) to carry out administrative measures at variance with the law and administrative practice of that or of the other Contracting State;
b) to supply information which is not obtainable by the competent authority under the law or in the normal course of the administration of that or of the other Contracting State;
c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public).
4.
If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other State may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting State to decline to supply information solely because it has no domestic interest in such information.
5.
In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person."
ARTICLE 3
Article 27, Article 28 and Article 29 of the Agreement are renumbered as Article 28, Article 29 and Article 30 respectively.ARTICLE 4
The Agreement is amended by inserting:"Article 27 Assistance in collection of taxes
1.
The Contracting States shall lend assistance to each other in the collection of revenue claims. This assistance is not restricted by Article 1. The competent authorities of the Contracting States may by mutual agreement settle the mode of application of this Article.
2.
The term "revenue claim" as used in this Article means an amount owed in respect of taxes referred to in Article 2, insofar as the taxation thereunder is not contrary to this Agreement or any other instrument to which the Contracting States are parties, as well as interest, administrative penalties and costs of collection or conservancy related to such amount.
3.
When a revenue claim of a Contracting State is enforceable under the law of that State and is owed by a person who, at that time, cannot, under the law of that State, prevent its collection, that revenue claim shall, at the request of the competent authority of that State, be accepted for purposes of collection by the competent authority of the other Contracting State. That revenue claim shall be collected by that other State in accordance with the provisions of its law applicable to the enforcement and collection of its own taxes as if the revenue claim were a revenue claim of that other State.
4.
When a revenue claim of a Contracting State is a claim in respect of which that State may, under its law, take measures of conservancy with a view to ensure its collection, that revenue claim shall, at the request of the competent authority of that State, be accepted for purposes of taking measures of conservancy by the competent authority of the other Contracting State. That other State shall take measures of conservancy in respect of that revenue claim in accordance with the provisions of its law as if the revenue claim were a revenue claim of that other State even if, at the time when such measures are applied, the revenue claim is not enforceable in the first-mentioned State or is owed by a person who has a right to prevent its collection.
5.
Notwithstanding the provisions of paragraphs 3 and 4, a revenue claim accepted by a Contracting State for purposes of paragraph 3 or 4 shall not, in that State, be subject to the time limits or accorded any priority applicable to a revenue claim under the law of that State by reason of its nature as such. In addition, a revenue claim accepted by a Contracting State for the purposes of paragraph 3 or 4 shall not, in that State, have any priority applicable to that revenue claim under the law of the other Contracting State.
6.
Proceedings with respect to the existence, validity or the amount of a revenue claim of a Contracting State shall not be brought before the courts or administrative bodies of the other Contracting State.
7.
Where, at any time after a request has been made by a Contracting State under paragraph 3 or 4 and before the other Contracting State has collected and remitted the relevant revenue claim to the first-mentioned State, the relevant revenue claim ceases to be
a) in the case of a request under paragraph 3, a revenue claim of the first-mentioned State that is enforceable under the law of that State and is owed by a person who, at that time, cannot, under the law of that State, prevent its collection, or
b) in the case of a request under paragraph 4, a revenue claim of the first-mentioned State in respect of which that State may, under its law, take measures of conservancy with a view to ensure its collectionthe competent authority of the first-mentioned State shall promptly notify the competent authority of the other State of that fact and, at the option of the other State, the first-mentioned State shall either suspend or withdraw its request.
8.
In no case shall the provisions of this Article be construed so as to impose on a Contracting State the obligation:
a) to carry out administrative measures at variance with the law and administrative practice of that or of the other Contracting State;
b) to carry out measures which would be contrary to public policy (ordre public);
c) to provide assistance if the other Contracting State has not pursued all reasonable measures of collection or conservancy, as the case may be, available under its law or administrative practice;
d) to provide assistance in those cases where the administrative burden for that State is clearly disproportionate to the benefit to be derived by the other Contracting State;
e) to provide assistance if that State considers that the taxes with respect to which assistance is requested are imposed contrary to generally accepted taxation principles."
ARTICLE 5
With reference to Articles 10, 11 and 12, if in any future Agreement with any other State, New Zealand should limit its taxation at source of dividends, interest or royalties to a rate lower than the one provided for in any of those Articles, the Government of New Zealand shall without undue delay inform the Government of Australia and shall enter into negotiations with the Government of Australia with a view to providing the same treatment.ARTICLE 6
1.
The Government of New Zealand and the Government of Australia shall notify each other in writing through the diplomatic channel of the completion of their domestic requirements for the entry into force of this Protocol.
2.
The Protocol, which shall form an integral part of the Agreement, shall enter into force on the date of the last notification, and thereupon the Protocol shall have effect.
3.
Notwithstanding paragraph 2, Article 4 shall have effect from the date agreed in a subsequent exchange of notes through the diplomatic channel.
In WITNESS WHEREOF the undersigned, being duly authorised thereto by their respective Governments, have signed this Protocol.
DONE at Melbourne in duplicate this fifteenth day of November two thousand and five in the English language.
FOR THE GOVERNMENT OF AUSTRALIA: FOR THE GOVERNMENT OF NEW ZEALAND: Peter Costello Kate Lackey [Signatures omitted] Sch 4A inserted by No 100 of 2006, s 3 and Sch 3 item 4, assented on 14 September 2006.
(Repealed by No 45 of 2011)
History
Sch 5 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Singapore Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 5 formerly read:
SCHEDULE 5 - Singapore Agreement
Section 3
AGREEMENT BETWEEN THE GOVERNMENT OF THE COMMONWEALTH OF AUSTRALIA AND THE GOVERNMENT OF THE REPUBLIC OF SINGAPORE FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOMEas amended by Sch 5A - the Singapore protocol
ARTICLE 1A
This Agreement shall apply to persons who are residents of one or both of the Contracting States.HistoryArt 1A inserted by Sch 5A (the Singapore protocol).
ARTICLE 1
1.
The existing taxes to which this Agreement applies are-
(a) in Australia:
the income tax, and the petroleum resource rent tax in respect of offshore projects, imposed under the federal law of the Commonwealth of Australia;
(b) in Singapore:
the income tax.
2.
This Agreement applies also to any identical or substantially similar taxes which are imposed subsequent to the date of signature of this Agreement by Singapore or the Commonwealth in addition to, or in place of, the existing taxes to which this Agreement applies.HistoryArt 1(1)(a) substituted by Sch 5A (the Singapore protocol).
ARTICLE 2
1.
In this Agreement, unless the context otherwise requires-
(a) the term "the Commonwealth" means the Commonwealth of Australia;
(b) the term "Australia" means the whole of the Commonwealth and includes-
(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) any territory which, subsequent to the date of signature of this Agreement, becomes a Territory of the Commonwealth; and
(vi) any area outside the territorial limits of the Commonwealth and the said Territories in respect of which there is for the time being in force a law of the Commonwealth or of a State or part of the Commonwealth or of a Territory aforesaid dealing with the exploitation of any of the natural resources of the sea-bed and sub-soil of the continental shelf;
(c) the term "Singapore" means the Republic of Singapore;
(d) the terms "Contracting State", "one of the Contracting States", and "other Contracting State" mean Australia or Singapore, as the context requires;
(e) the terms "Australian tax" and "Singapore tax" mean tax imposed by the Commonwealth and tax imposed by Singapore respectively, being tax to which this Agreement applies by virtue of Article 1;
(f) the term "company" includes any body or association which is treated as a company for tax purposes;
(g) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or his authorised representative and in the case of Singapore, the Minister for Finance or his authorised representative;
(h) the term "enterprise" includes undertaking;
(i) the term "Malaysian company" means a company which, for the purposes of income tax in Malaysia, is resident in Malaysia;
(j) the term "person" includes an individual, a company and any body of persons, corporate or not corporate;
(k) the terms "profits of a Singapore enterprise" and "profits of an Australian enterprise" mean profits of a Singapore enterprise or profits of an Australian enterprise respectively, but do not include-
(i) dividends, interest (as defined in Article 9), or royalties (including those payments which come within the meaning of "royalties" for the purposes of Article 10) other than such dividends, interest or royalties that are effectively connected with a trade or business carried on through a permanent establishment in one of the Contracting States by an enterprise of the other Contracting State;
(ii) rent;
(iii) remuneration or other income for personal (including professional) services;
(iv) profits from the operation of ships or aircraft;
(v) payments to the extent to which they are received as consideration for the use of, or the right to use, motion picture films, literary, dramatic, musical or artistic copyrights, films or video tapes for use in connection with television or tapes for use in connection with radio broadcasting; or
(vi) payments to the extent to which they are received as consideration for the supply of scientific, technical, industrial or commercial knowledge, information or assistance (other than those payments which come within the meaning of "royalties" for the purposes of Article 10);
(l) the term "resident in Singapore" has the meaning which it has under the laws of Singapore relating to Singapore tax; and the term "resident of Australia" has the meaning which it has under the laws of the Commonwealth relating to Australian tax;
(m) the term "tax" means Australian tax or Singapore tax, as the context requires;
(n) words in the singular include the plural and words in the plural include the singular.
2.
The terms "Australian tax" and "Singapore tax" do not include any amount which represents a penalty or interest imposed under the law in force in Australia or Singapore relating to the taxes to which this Agreement applies.
3.
Where under this Agreement income is relieved from tax in one of the Contracting States, and, under the law in force in the other Contracting State, a person, in respect of the said income, is subject to tax by reference to the amount thereof which is remitted to or received in that other Contracting State and not by reference to the full amount thereof, then the relief to be allowed under this Agreement in the first-mentioned Contracting State shall apply only to so much of the income as is remitted to or received in the other Contracting State.
4.
Unless the context otherwise requires, any term of this Agreement not otherwise defined shall have, in a Contracting State, the meaning which it has under the laws in that Contracting State from time to time in force relating to the taxes to which this Agreement applies.HistoryArt 2(4) amended by Sch 5A (the Singapore protocol).
ARTICLE 3
1.
For the purposes of this Agreement-
(a) the term "Australian company" means any company which being a resident of Australia-
(i) is incorporated in Australia and has its centre of administrative or practical management in Australia whether or not any person outside Australia exercises or is capable of exercising any overriding control or direction of the company or of its policy or affairs in any way whatsoever; or
(ii) is managed and controlled in Australia;
(b) the term "Singapore company" means any company which is managed and controlled in Singapore and which is not an Australian company;
(c) the term "Singapore resident" means any Singapore company and any person (other than a company) who is resident in Singapore; and
(d) the term "Australian resident" means any Australian company and any other person (other than a Singapore company) who is a resident of Australia.
2.
Where by reason of the provisions of paragraph (1) of this Article an individual is both a Singapore resident and an Australian resident-
(a) he shall be treated solely as a Singapore resident-
(i) if he has a permanent home available to him in Singapore and has not a permanent home available to him in Australia;
(ii) if sub-paragraph (a)(i) of this paragraph is not applicable but he has an habitual abode in Singapore and has not an habitual abode in Australia;
(iii) if neither sub-paragraph (a)(i) nor sub-paragraph (a)(ii) of this paragraph is applicable but the Contracting State with which his personal and economic relations are closest is Singapore;
(b) he shall be treated solely as an Australian resident-
(i) if he has a permanent home available to him in Australia and has not a permanent home available to him in Singapore;
(ii) if sub-paragraph (b)(i) of this paragraph is not applicable but he has an habitual abode in Australia and has not an habitual abode in Singapore;
(iii) if neither sub-paragraph (b)(i) nor sub-paragraph (b)(ii) of this paragraph is applicable but the Contracting State with which his personal and economic relations are closest is Australia.
3.
Where by reason of the provisions of paragraph (1) of this Article a person other than an individual is both a Singapore resident and an Australian resident-
(a) it shall be treated solely as a Singapore resident if it is managed and controlled in Singapore;
(b) it shall be treated solely as an Australian resident if it is managed and controlled in Australia.
4.
In this Agreement the term "resident of one of the Contracting States" and the term "resident of the other Contracting State" mean a person who is a Singapore resident or a person who is an Australian resident as the context requires.
5.
In this Agreement, the term "Singapore enterprise" and the term "Australian enterprise" mean an industrial or commercial enterprise (including a mining, agricultural, pastoral, forestry or plantation enterprise) carried on by a Singapore resident or by an Australian resident respectively, and the term "enterprise of one of the Contracting States" and the term "enterprise of the other Contracting State" mean an Australian enterprise or a Singapore enterprise, as the context requires.
ARTICLE 4
(1)
For the purposes of this Agreement, the term "permanent establishment", in relation to an enterprise, means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" includes but is not limited to-
(a) a place of management;
(b) a branch;
(c) an office;
(d) a store or other sales outlet;
(e) a factory;
(f) a workshop;
(g) a warehouse except where it is used solely for any of the purposes mentioned in paragraph (4);
(h) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources; and
(i) a building site, or a construction, installation or assembly project, but only where such site or project or any combination of them continues for a period aggregating more than 6 months within any 12-month period.
(3)
An enterprise of a Contracting State shall be deemed to have a permanent establishment and to carry on trade or business through that permanent establishment in the other Contracting State if-
(a) it carries on supervisory activities in that other State for a period or periods aggregating more than 6 months within any 12-month period in connection with a building site, or a construction, installation or assembly project or any combination of them which is being undertaken in that other State; or
(b) substantial equipment is being used in that other State by, for or under contract with the enterprise.
(4)
An enterprise shall not be deemed to have a permanent establishment merely by reason of-
(a) the use of facilities solely for the purpose of storage or display of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage or display;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising, the supply of information or scientific research.
(5)
A person acting in one of the Contracting States on behalf of an enterprise ofthe other Contracting State, other than an agent of an independent status to whom paragraph (6) applies, shall be deemed to be a permanent establishment of the enterprise in the first-mentioned Contracting State if-
(a) the person has, and habitually exercises in the first-mentioned Contracting State, an authority to conclude contracts for or on behalf of the enterprise unless the exercise of such authority is limited to the purchase of goods or merchandise for that enterprise; or
(b) there is maintained in the first-mentioned Contracting State a stock of goods or merchandise belonging to the enterprise from which he or she regularly fills orders on behalf of the enterprise; or
(c) the person habitually secures orders in the first-mentioned Contracting State wholly or principally for the enterprise itself or for any other enterprise which is controlled by it or has a controlling interest in it; or
(d) in so acting the person manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
(6)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because that enterprise carries on business in that other State through a broker, general commission agent, or any other agent of an independent status, where such broker or agent is acting in the ordinary course of that person's business.
(7)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.HistoryArt 4 substituted by Sch 5A (the Singapore protocol).
ARTICLE 4A
(1)
Income from real property may be taxed in the Contracting State in which the real property is situated.
(2)
In this Article, the term real property, in relation to one of the Contracting States, has the meaning which it has under the laws of that State and also includes-
(a) a lease of land and any other interest in or over land whether improved or not, including a right to explore for or exploit mineral, oil or gas deposits or other natural resources; and
(b) a right to receive variable or fixed payments either as consideration for the exploitation of or the right to explore for or exploit, or in respect of the exploitation of, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources.
(3)
Any interest or right referred to in paragraph (2) shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
(4)
The provisions of paragraphs (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 professional services.HistoryArt 4A inserted by Sch 5A (the Singapore protocol).
ARTICLE 5
(1)
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph (3), where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
(6)
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
(7)
Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits from insurance with non-residents, provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(8)
Where-
(a) a resident of one of the Contracting States is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 4, have a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated therein and that share of business profits shall be attributed to that permanent establishment.
HistoryArt 5 substituted by Sch 5A (the Singapore protocol).
ARTICLE 6
(1)
Where-
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same person participates directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the income to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
(3)
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph (1) or (2), in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the first-mentioned State. In determining such an adjustment, due regard shall be had to the other provisions of thisAgreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.HistoryArt 6 substituted by Sch 5A (the Singapore protocol).
ARTICLE 7
(1)
Profits from the operation of ships or aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1), such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
(3)
The provisions of paragraphs (1) and (2) shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organization or in an international operating agency.
(4)
Interest earned on funds held in one of the Contracting States by a resident of the other Contracting State in connection with the operation of ships or aircraft, other than operations confined solely to places in the first-mentioned State, shall be treated as profits from the operation of ships or aircraft.
(5)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in one of the Contracting States for discharge at another place in that Contracting State, or at one or more structures used in connection with the exploration for or exploitation of natural resources situated in waters adjacent to the territorial waters of that Contracting State, shall be treated as profits from operations of ships or aircraft confined solely to places in that State.HistoryArt 7 substituted by Sch 5A (the Singapore protocol).
ARTICLE 8
1.
The Australian tax on dividends, being dividends paid by a company which is a resident of Australia, derived by a Singapore resident who is beneficially entitled to the dividends, shall not exceed 15 per centum of the gross amount of the dividends.
2.
Subject to the provisions of this Article dividends paid by a company which is resident in Singapore, and dividends paid by a Malaysian company out of profits derived from sources in Singapore, being dividends derived by an Australian resident who is beneficially entitled to the dividends, shall be exempt from any tax in Singapore which may be chargeable on dividends in addition to the tax chargeable in respect of the profits of the company.
3.
Nothing in the preceding paragraph shall affect the provisions of Singapore law under which the tax in respect of a dividend paid by a company which is resident in Singapore, or by a Malaysian company out of profits derived from sources in Singapore, from which Singapore tax has been, or has been deemed to be, deducted may be adjusted by reference to the rate of tax appropriate to the Singapore year of assessment immediately following that in which the dividend was paid.
4.
If Singapore, subsequent to the signing of this Agreement, imposes a tax on dividends paid by a company which is resident in Singapore or by a Malaysian company out of profits derived from sources in Singapore, which is in addition to the tax chargeable in respect of the profits of the company, such tax may be charged but the tax so charged on such dividends derived by an Australian resident who is beneficially entitled to the dividends shall not exceed 15 per centum of the gross amount of the dividends.
5.
Paragraphs 1, 2 and 4 of this Article shall not apply if the resident of one of the Contracting States who is beneficially entitled to the dividends has in the other Contracting State a permanent establishment and the holding giving rise to the dividends is effectively connected with a trade or business carried on through that permanent establishment. In any such case, the provisions of Article 5 shall apply.
6.
Dividends paid by a company which is a resident ofone of the Contracting States, being dividends derived by a person who is beneficially entitled to the dividends and who is not a resident of the other Contracting State, shall be exempt from tax in that other Contracting State. This paragraph shall not apply in relation to a Singapore company which is also a resident of Australia or any Australian company which is also resident in Singapore.HistoryArt 8(5) amended by Sch 5A (the Singapore protocol).
ARTICLE 9
1.
The Australian tax on interest derived by a Singapore resident who is beneficially entitled to the interest shall not exceed 10 per centum of the gross amount of the interest.
2.
The Singapore tax on interest derived by an Australian resident who is beneficially entitled to the interest shall not exceed 10 per centum of the gross amount of the interest.
3.
Paragraphs 1 and 2 of this Article shall not apply if the resident of one of the Contracting States who is beneficially entitled to the interest has in the other Contracting State a permanent establishment and the indebtedness giving rise to the interest is effectively connected with a trade or business carried on through that permanent establishment. In any such case, the provisions of Article 5 shall apply.
4.
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest or between both of them and some other person, the amount of the interest paid exceeds the amount which might have been expected to have been agreed upon in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount.
5.
In this Article the term "interest" means interest, and amounts in the nature of interest, on bonds, securities, debentures or on any other form of indebtedness. The term does not include income to which paragraph (4) of Article 7 applies.HistoryArt 9(3) and 9(5) amended by Sch 5A (the Singapore protocol).
ARTICLE 10
1.
The Australian tax on royalties derived by a Singapore resident who is beneficially entitled to the royalties shall not exceed 10 per centum of the gross amount of the royalties.
2.
The Singapore tax on royalties derived by an Australian resident who is beneficially entitled to the royalties shall not exceed 10 per centum of the gross amount of the royalties.
3.
In this Article royalties means payments or credits, whether periodical or not, and however described or computed, to the extent to which they are received as consideration for-
(a) the use of, or the right to use, any-
(i) copyright (other than a literary, dramatic, musical or artistic copyright), patent, design or model, plan, secret formula or process, trademark, or other like property or right; or
(ii) industrial, commercial or scientific equipment;
(b) the supply of scientific, industrial or commercial knowledge or information; or
(c) total or partial forbearance in respect of the use or supply of any property or right referred to in this paragraph,but does not include royalties or other payments in respect of the operation of mines or quarries or of the exploitation of natural resources or payments to the extent to which they are received as consideration for the use of, or the right to use, motion picture films, tapes for use in connection with radio broadcasting or films or video tapes for use in connection with television.
4.
Paragraphs 1 and 2 of this Article shall not apply if the resident of one of the Contracting States who is beneficially entitled to the royalties has in the other Contracting State a permanent establishment and the information, right or property giving rise to the royalties is effectively connected with a trade or business carried on through that permanent establishment. In any such case, the provisions of Article 5 shall apply.
5.
Where, owing to a special relationship between the payer and the person who is beneficially entitled to the royalties or between both of them and some other person, the amount of the royalties paid exceeds the amount which might have been expected to have been agreed upon in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount.HistoryArt 10(3) substituted and 10(4) amended by Sch 5A (the Singapore protocol).
ARTICLE 10A
(1)
Income or gains derived by a resident of one of the Contracting States from the alienation of real property referred to in Article 4A and, as provided in that Article, situated in the other Contracting State may be taxed in that other State.
(2)
Income or gains from the alienation of property, other than real property referred to in Article 4A, that forms part of the business property of a permanent establishment which an enterprise of one of the Contracting States has in the other Contracting State or pertains to a fixed base available to a resident of the first-mentioned State in that other State for the purpose of performing independent personal services, including income or gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base, may be taxed in that other State.
(3)
Income or gains from the alienation of ships or aircraft operated in international traffic, or of property (other than real property referred to in Article 4A) pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise which operated those ships or aircraft is a resident.
(4)
Income or gains derived by a resident of one of the Contracting States from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of real property in the other Contracting State of a kind referred to in Article 4A and, as provided in that Article, situated in that other State, may be taxed in that other State.
(5)
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of property other than that to which any of paragraphs (1), (2), (3) and (4) apply.HistoryArt 10A inserted by Sch 5A (the Singapore protocol).
ARTICLE 11
1.
Subject to this Article and to Articles 12, 13 and 14 remuneration or other income derived by an individual who is a resident of one of the Contracting States in respect of personal (including professional) services shall be subject to tax only in that Contracting State unless the services are performed or exercised in the other Contracting State. If the services are so performed or exercised such remuneration or other income as is derived therefrom shall be deemed to have a source in, and may be taxed in, that other Contracting State.
2.
In relation to remuneration of a director of a company derived from the company, the provisions of this Article and of Article 12 shall apply as if the remuneration were remuneration in respect of personal services. Director's fees and similar payments derived by a resident of one of the Contracting States in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State shall be deemed to be derived in respect of personal services performed in, and may be taxed in, that other Contracting State.
3.
An individual who is a resident of one of the Contracting States shallbe exempt from tax in the other Contracting State on remuneration from an employment exercised on ships or aircraft in international traffic.
ARTICLE 12
1.
Remuneration or other income derived by an individual who is a resident of one of the Contracting States in respect of personal (including professional) services performed or exercised in the other Contracting State shall be exempt from tax in the other Contracting State if-
(a) the recipient is present in the other Contracting State for a period or periods not exceeding in the aggregate 183 days in the year of income or in the basis period for the year of assessment as the case may be of that other Contracting State;
(b) the services are performed or exercised for or on behalf of a person who is a resident of the first-mentioned Contracting State; and
(c) the remuneration or other income is not deductible in determining the profits for tax purposes in the other Contracting State of a permanent establishment in that other Contracting State of that person.
2.
Paragraph 1 of this Article shall not apply to remuneration or other income derived by public entertainers (such as stage, motion picture, radio or television artistes, musicians and athletes) from their personal activities as such.
3.
Notwithstanding anything contained in this Agreement, where an enterprise of one of the Contracting States derives profits arising from, or in relation to, contracts or obligations to provide in the other Contracting State services of public entertainers referred to in paragraph (2) of this Article, the profits may be taxed in the other Contracting State and shall be deemed to have a source in that other Contracting State, except where the enterprise is, in connection with the provision of those services, substantially supported from the public funds of a Government of the first-mentioned Contracting State, in which case the profits shall be exempt from tax in the other Contracting State.
4.
For the purposes of paragraph 3 of this Article, "a Government of the first-mentioned Contracting State" means, in the case of Singapore, the Government of Singapore and, in the case of Australia, the Government of the Commonwealth or of any State of the Commonwealth.
ARTICLE 13
1.
A pension or an annuity, derived from sources within one of the Contracting States by an individual who is a resident of the other Contracting State, shall be exempt from tax in the first-mentioned Contracting State.
2.
The term "annuity" means a stated sum payable periodically at stated times, during life or during a specified or ascertainable period of time, under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
3.
This Article shall not apply to a pension paid to an individual by the Government of the Commonwealth or of any State of the Commonwealth or the Government of Singapore in respect of services rendered in the discharge of governmental functions.
ARTICLE 14
1.
Remuneration (other than pensions) paid by the Government of the Commonwealth or of any State of the Commonwealth to any individual for services rendered to that Government in the discharge of governmental functions shall be exempt from Singapore tax, except where the individual is resident in Singapore and is not an Australian citizen.
2.
Remuneration (other than pensions) paid by the Government of Singapore to any individual for services rendered to that Government in the discharge of governmental functions shall be exempt from Australian tax, except where the individual is a resident of Australia and is not a Singapore citizen.
3.
This Article shall not apply to any remuneration in respect of services rendered in connection with any trade or business carried on by a Government for purposes of profit.
ARTICLE 15
A student or trainee who is, or was immediately before visiting one of the Contracting States, a resident of the other Contracting State and is present in the first-mentioned Contracting State solely for the purpose of his education or training shall not be taxed in that first-mentioned Contracting State on payments which he receives for the purpose of his maintenance, education or training provided that such payments are made to him from outside that first-mentioned Contracting State.ARTICLE 16
1.
This Article shall apply to a person who is a resident of Australia and is also resident in Singapore.
2.
Where such a person is treated for the purposes of this Agreement solely as a resident of one of the Contracting States he shall be exempt in the other Contracting State from tax on any income in respect of which he is subject to tax in the first-mentioned Contracting State if the income is derived-
(a) from sources in the first-mentioned Contracting State; or
(b) from sources outside both Contracting States.
ARTICLE 16A
Items of income which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable according to the laws of the respective Contracting States relating to tax.HistoryArt 16A inserted by Sch 5A (the Singapore protocol).
ARTICLE 17
Profits, income or gains derived by a resident of one of the Contracting States which, under any one or more of Article 4A, Article 5, Articles 7 to 14 and Article 16A, may be taxed in the other Contracting State shall for the purposes of Article 18 and of the laws of the respective Contracting States relating to tax be deemed to be income from sources in that other State.HistoryArt 17 substituted by Sch 5A (the Singapore protocol).
ARTICLE 18
(1)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Singapore tax paid under the law of Singapore and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Singapore shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
Where a company which is a resident of Singapore pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 per cent of the voting power of the first-mentioned company, the credit referred to in paragraph (1) shall include the Singapore tax paid by that first-mentioned company in respect of that portion of its profits out of which the dividend is paid.
(3)
For the purposes of paragraphs (1) and (2), Singapore tax paid shall be deemed to include an amount equivalent to the amount of Singapore tax which, under the law of Singapore relating to Singapore tax and in accordance with this Agreement, would have been payable but for an exemption from or reduction of Singapore tax granted under-
(a) section 13(2) of the Income Tax Act 1985 of Singapore;
(b) Parts II, IIIA, IV, VI, VII, VIII, IX, X or XI of the Economic Expansion Incentives (Relief from Income Tax) Act 1988 of Singapore; and
(c) Parts III, V, VIA or XII of the Economic Expansion Incentives (Relief from Income Tax) Act 1988 of Singapore except where the exemption or reduction is granted in respect of income attributable to the provision of financial (including insurance) services provided directly or indirectly to a person who is a resident of Australia,insofar as those provisions were in force on, and have not been modified since, the date of signature of the Protocol which first amended the Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Singapore for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income signed in Canberra on 11 February 1969, or have been modified only in minor respects so as not to affect their general character or any other provision which may subsequently be made granting an exemption from or reduction of tax which the Treasurer of Australia and the Minister for Finance of Singapore, or their authorised representatives, agree from time to time in letters exchanged for this purpose to be of a substantially similar character, if that provision has not been modified thereafter or has been modified only in minor respects so as not to affect its general character.
(4)
The provisions of paragraph (3) shall apply only in relation to income derived in any of the 10 years of income beginning with the year of income that commenced on 1 July 1987 and in any later year of income that may be agreed in an exchange of letters for this purpose by the Treasurer of Australia and the Minister for Finance of Singapore, or their authorised representatives.
(5)
Subject to the provisions of the laws of Singapore regarding the allowance as a credit against Singapore tax of tax payable in any country other than Singapore, Australian tax payable, whether directly or by deduction, in respect of income from sources within Australia shall be allowed as a credit against Singapore tax payable in respect of that income. Where such income is a dividend paid by a company which is a resident of Australia to a company which is a resident of Singapore and which owns directly or indirectly not less than 10 per cent of the voting power of the first-mentioned company, the credit shall take into account the Australian tax paid by the first-mentioned company in respect of that portion of its profits out of which the dividend is paid.HistoryArt 18 substituted by Sch 5A (the Singapore protocol).
ARTICLE 19
1.
The competent authorities shall exchange such information (being information which is at their disposal under their respective taxation laws in the normal course of administration) as is necessary for carrying out the provisions of this Agreement or for the prevention of fraud or for the administration of statutory provisions against legal avoidance in relation to the taxes which are the subject of this Agreement.
2.
Any information so exchanged shall be treated as secret but may be disclosed to persons (including a court or tribunal) concerned with the assessment, collection, enforcement or prosecution in respect of the taxes which are the subject of this Agreement.
3.
No information as aforesaid shall be exchanged which would disclose any trade, business, industrial or professional secret or trade process.
ARTICLE 20
1.
Where a taxpayer considers that the action of the competent authority in one of the Contracting States has resulted, or is likely to result, in double taxation contrary to the provisions of this Agreement, he shall be entitled to present the facts to the competent authority in the Contracting State of which he is a resident and, should the taxpayer's claim be deemed worthy of consideration, the competent authority in that Contracting State shall endeavour to come to an agreement with the competent authority in the other Contracting State with a view to the avoidance of the double taxation in question.
2.
The competent authority in a Contracting State may communicate directly with the competent authority in the other Contracting State for the purpose of giving effect to the provisions of this Agreement and in an endeavour to assure its consistent interpretation and application. In particular, the competent authorities may consult together to endeavour to resolve disputes arising out of the application of paragraph 3 of Article 5 or Article 6.[ CCH Note: Art 16 of Sch 5A (the Singapore protocol) provides for the substitution of "(2)" for "(3)" in Art 20(2). The amendment has not been consolidated into Art 20(2) because of the discrepancy between the wordings of Sch 5A and Art 20(2). It appears that Sch 5A is intended to provide for the substitution of "(2)" for "3".]
ARTICLE 21
This Agreement shall come into force on the date on which the last of all such things shall have been done in Australia and Singapore as are necessary to give the Agreement the force of law in Australia and Singapore so far as its provisions affect Australian tax and Singapore tax respectively and shall thereupon have effect-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in respect of income derived on or after 1st July, 1969;
(ii) in respect of other Australian tax, for any year of income beginning on or after 1st July, 1969;
(b) in Singapore-
for any year of assessment beginning on or after 1st January, 1970.ARTICLE 22
This Agreement shall continue in effect indefinitely, but either Contracting State may, on or before 30th June in any calendar year give to the other Contracting State notice of termination and, in that event, this Agreement shall cease to be effective-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in respect of income derived on or after the commencement of the financial year beginning on 1st July in the calendar year next following that in which the notice is given;
(ii) in respect of other Australian tax, for any year of income beginning on or after 1st July in the calendar year next following that in which the notice is given;
(b) in Singapore-
for any year of assessment beginning on or after 1st January in the second calendar year next following that in which the notice is given.IN WITNESS WHEREOF the undersigned, duly authorized thereto, have signed this Agreement.
DONE in duplicate at Canberra this Eleventh day of February in the year one thousand nine hundred and sixty-nine in the English language.
WILLIAM McMAHON
For the Government of the Commonwealth of AustraliaS. T. STEWART
For the Government of the Republic of Singapore
Sch 5 inserted by No 24 of 1969.
(Repealed by No 45 of 2011)
History
Sch 5A repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Protocol to Singapore Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 5A formerly read:
SCHEDULE 5A - Protocol to Singapore Agreement
Section 3
PROTOCOL AMENDING THE AGREEMENT BETWEEN THE GOVERNMENT OF THE COMMONWEALTH OF AUSTRALIA AND THE GOVERNMENT OF THE REPUBLIC OF SINGAPORE FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1
The following Article is inserted before Article 1 of the Agreement:"ARTICLE 1A
This Agreement shall apply to persons who are residents of one or both of the Contracting States."ARTICLE 2
Article 1 of the Agreement is amended by omitting subparagraph (1)(a) and substituting:
"(a) in Australia:
the income tax, and the petroleum resource rent tax in respect of offshore projects, imposed under the federal law of the Commonwealth of Australia;"ARTICLE 3
Article 2 of the Agreement is amended by inserting in paragraph (4) "from time to time in force" after "that Contracting State".ARTICLE 4
Article 4 of the Agreement is omitted and the following Article is substituted:"ARTICLE 4
(1)
For the purposes of this Agreement, the term 'permanent establishment', in relation to an enterprise, means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
(2)
The term 'permanent establishment' includes but is not limited to-
(a) a place of management;
(b) a branch;
(c) an office;
(d) a store or other sales outlet;
(e) a factory;
(f) a workshop;
(g) a warehouse except where it is used solely for any of the purposes mentioned in paragraph (4);
(h) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources; and
(i) a building site, or a construction, installation or assembly project, but only where such site or project or any combination of them continues for a period aggregating more than 6 months within any 12-month period.
(3)
An enterprise of a Contracting State shall be deemed to have a permanent establishment and to carry on trade or business through that permanent establishment in the other Contracting State if-
(a) it carries on supervisory activities in that other State for a period or periods aggregating more than 6 months within any 12-month period in connection with a building site, or a construction, installation or assembly project or any combination of them which is being undertaken in that other State; or
(b) substantial equipment is being used in that other State by, for or under contract with the enterprise.
(4)
An enterprise shall not be deemed to have a permanent establishment merely by reason of-
(a) the use of facilities solely for the purpose of storage or display of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage or display;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising, the supply of information or scientific research.
(5)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State, other than an agent of an independent status to whom paragraph (6) applies, shall be deemed to be a permanent establishment of the enterprise in the first-mentioned Contracting State if-
(a) the person has, and habitually exercises in the first-mentioned Contracting State, an authority to conclude contracts for or on behalf of the enterprise unless the exercise of such authority is limited to the purchase of goods or merchandise for that enterprise; or
(b) there is maintained in the first-mentioned Contracting State a stock of goods or merchandise belonging to the enterprise from which he or she regularly fills orders on behalf of the enterprise; or
(c) the person habitually secures orders in the first-mentioned Contracting State wholly or principally for the enterprise itself or for any other enterprise which is controlled by it or has a controlling interest in it; or
(d) in so acting the person manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
(6)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because that enterprise carries on business in that other State through a broker, general commission agent, or any other agent of an independent status, where such broker or agent is acting in the ordinary course of that person's business.
(7)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other."
ARTICLE 5
The following Article is inserted after Article 4 of the Agreement:"ARTICLE 4A
(1)
Income from real property may be taxed in the Contracting State in which the real property is situated.
(2)
In this Article, the term real property, in relation to one of the Contracting States, has the meaning which it has under the laws of that State and also includes-
(a) a lease of land and any other interest in or over land whether improved or not, including a right to explore for or exploit mineral, oil or gas deposits or other natural resources; and
(b) a right to receive variable or fixed payments either as consideration for the exploitation of or the right to explore for or exploit, or in respect of the exploitation of, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources.
(3)
Any interest or right referred to in paragraph (2) shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
(4)
The provisions of paragraphs (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 professional services."
ARTICLE 6
Article 5 of the Agreement is omitted and the following Article is substituted:"ARTICLE 5
(1)
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph (3), where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
(6)
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
(7)
Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits from insurance with non-residents, provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(8)
Where-
(a) a resident of one of the Contracting States is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 4, have a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated therein and that share of business profits shall be attributed to that permanent establishment."
ARTICLE 7
Article 6 of the Agreement is omitted and the following Article is substituted:"ARTICLE 6
(1)
Where-
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same person participates directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the income to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
(3)
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph (1) or (2), in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the first-mentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other."
ARTICLE 8
Article 7 of the Agreement is omitted and the following Article is substituted:"ARTICLE 7
(1)
Profits from the operation of ships or aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1), such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
(3)
The provisions of paragraphs (1) and (2) shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organization or in an international operating agency.
(4)
Interest earned on funds held in one of the Contracting States by a resident of the other Contracting State in connection with the operation of ships or aircraft, other than operations confined solely to places in the first-mentioned State, shall be treated as profits from the operation of ships or aircraft.
(5)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in one of the Contracting States for discharge at another place in that Contracting State, or at one or more structures used in connection with the exploration for or exploitation of natural resources situated in waters adjacent to the territorial waters of that Contracting State, shall be treated as profits from operations of ships or aircraft confined solely to places in that State."
ARTICLE 9
Article 8 of the Agreement is amended by adding at the end of paragraph (5):"In any such case, the provisions of Article 5 shall apply."
ARTICLE 10
Article 9 of the Agreement is amended by:
(a) adding at the end of paragraph (3):; and"In any such case, the provisions of Article 5 shall apply."
(b) adding at the end of paragraph (5):"The term does not include income to which paragraph (4) of Article 7 applies."
ARTICLE 11
Article 10 of the Agreement is amended by:
(a) omitting paragraph (3) and substituting:; and
"(3)
In this Article 'royalties' means payments or credits, whether periodical or not, and however described or computed, to the extent to which they are received as consideration for-
(a) the use of, or the right to use, any-
(i) copyright (other than a literary, dramatic, musical or artistic copyright), patent, design or model, plan, secret formula or process, trademark, or other like property or right; or
(ii) industrial, commercial or scientific equipment;
(b) the supply of scientific, industrial or commercial knowledge or information; or
(c) total or partial forbearance in respect of the use or supply of any property or right referred to in this paragraph,but does not include royalties or other payments in respect of the operation of mines or quarries or of the exploitation of natural resources or payments to the extent to which they are received as consideration for the use of, or the right to use, motion picture films, tapes for use in connection with radio broadcasting or films or video tapes for use in connection with television."
(b) adding at the end of paragraph (4):"In any such case, the provisions of Article 5 shall apply."
ARTICLE 12
The following Article is inserted after Article 10 of the Agreement:"ARTICLE 10A
(1)
Income or gains derived by a resident of one of the Contracting States from the alienation of real property referred to in Article 4A and, as provided in that Article, situated in the other Contracting State may be taxed in that other State.
(2)
Income or gains from the alienation of property, other than real property referred to in Article 4A, that forms part of the business property of a permanent establishment which an enterprise of one of the Contracting States has in the other Contracting State or pertains to a fixed base available to a resident of the first-mentioned State in that other State for the purpose of performing independent personal services, including income or gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base, may be taxed in that other State.
(3)
Income or gains from the alienation of ships or aircraft operated in international traffic, or of property (other than real property referred to in Article 4A) pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise which operated those ships or aircraft is a resident.
(4)
Income or gains derived by a resident of one of the Contracting States from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of real property in the other Contracting State of a kind referred to in Article 4A and, as provided in that Article, situated in that other State, may be taxed in that other State.
(5)
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of property other than that to which any of paragraphs (1), (2), (3) and (4) apply."
ARTICLE 13
The following Article is inserted after Article 16 of the Agreement:"ARTICLE 16A
Items of income which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable according to the laws of the respective Contracting States relating to tax."ARTICLE 14
Article 17 of the Agreement is omitted and the following Article is substituted:"ARTICLE 17
Profits, income or gains derived by a resident of one of the Contracting States which, under any one or more of Article 4A, Article 5, Articles 7 to 14 and Article 16A, may be taxed in the other Contracting State shall for the purposes of Article 18 and of the laws of the respective Contracting States relating to tax be deemed to be income from sources in that other State."ARTICLE 15
Article 18 of the Agreement is omitted and the following Article is substituted:"ARTICLE 18
(1)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Singapore tax paid under the law of Singapore and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Singapore shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
Where a company which is a resident of Singapore pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 per cent of the voting power of the first-mentioned company, the credit referred to in paragraph (1) shall include the Singapore tax paid by that first-mentioned company in respect of that portion of its profits out of which the dividend is paid.
(3)
For the purposes of paragraphs (1) and (2), 'Singapore tax paid' shall be deemed to include an amount equivalent to the amount of Singapore tax which, under the law of Singapore relating to Singapore tax and in accordance with this Agreement, would have been payable but for an exemption from or reduction of Singapore tax granted under-
(a) section 13(2) of the Income Tax Act 1985 of Singapore;
(b) Parts II, IIIA, IV, VI, VII, VIII, IX, X or XI of the Economic Expansion Incentives (Relief from Income Tax) Act 1988 of Singapore; and
(c) Parts III, V, VIA or XII of the Economic Expansion Incentives (Relief from Income Tax) Act 1988 of Singapore except where the exemption or reduction is granted in respect of income attributable to the provision of financial (including insurance) services provided directly or indirectly to a person who is a resident of Australia,insofar as those provisions were in force on, and have not been modified since, the date of signature of the Protocol which first amended the Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Singapore for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income signed in Canberra on 11 February 1969, or have been modified only in minor respects so as not to affect their general character or any other provision which may subsequently be made granting an exemption from or reduction of tax which the Treasurer of Australia and the Minister for Finance of Singapore, or their authorised representatives, agree from time to time in letters exchanged for this purpose to be of a substantially similar character, if that provision has not been modified thereafter or has been modified only in minor respects so as not to affect its general character.
(4)
The provisions of paragraph (3) shall apply only in relation to income derived in any of the 10 years of income beginning with the year of income that commenced on 1 July 1987 and in any later year of income that may be agreed in an exchange of letters for this purpose by the Treasurer of Australia and the Minister for Finance of Singapore, or their authorised representatives.
(5)
Subject to the provisions of the laws of Singapore regarding the allowance as a credit against Singapore tax of tax payable in any country other than Singapore, Australian tax payable, whether directly or by deduction, in respect of income from sources within Australia shall be allowed as a credit against Singapore tax payable in respect of that income. Where such income is a dividend paid by a company which is a resident of Australia to a company which is a resident of Singapore and which owns directly or indirectly not less than 10 per cent of the voting power of the first-mentioned company, the credit shall take into account the Australian tax paid by the first-mentioned company in respect of that portion of its profits out of which the dividend is paid."
ARTICLE 16
Article 20 of the Agreement is amended by omitting (3) from paragraph (2) and substituting (2).ARTICLE 17
(1)
This Protocol, which shall form an integral part of the Agreement, shall enter into force on the date on which the Contracting Governments exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Protocol the force of law in Australia and in Singapore respectively, and thereupon this Protocol shall, subject to paragraph (2), have effect:
(a) in Australia:
(i) in the case of interest to which Article 8 and paragraph (b) of Article 10 of the Protocol apply, in respect of tax on income of any year of income beginning on or after 1 July 1983; and
(ii) in any other case, in respect of tax on income of any year of income beginning on or after 1 July 1987;
(b) in Singapore:
(i) in the case of interest to which Article 8 and paragraph (b) of Article 10 of the Protocol apply, for any year of assessment beginning on or after 1 January 1984; and
(ii) in any other case, for any year of assessment beginning on or after 1 January 1988.
(2)
Where any provision of the Agreement that is affected by this Protocol would have afforded any greater relief from tax than is afforded by the amendments made by this Protocol, that provision shall continue to have effect:
(a) in Singapore, for any year of assessment beginning before the date on which this Protocol enters into force;
(b) in Australia:
(i) in the case of paragraph (2) of Article 18 of the Agreement, only in respect of dividends paid before 12 March 1988;
(ii) in respect of other income for any year of income beginning before the date on which this Protocol enters into force.
IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Protocol.
DONE in duplicate at Canberra this sixteenth day of October, one thousand nine hundred and eighty-nine, in the English language.
P.J. KEATING
FOR THE GOVERNMENT OF AUSTRALIAJOSEPH FRANCIS CONCEICAO
FOR THE GOVERNMENT OF THE REPUBLIC OF SINGAPORE.
Sch 5A inserted by No 165 of 1989. The Singapore protocol entered into force on 5 January 1990.
(Repealed by No 45 of 2011)
History
Sch 5B repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Second Singapore Protocol from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 5B formerly read:
SCHEDULE 5B - The Second Singapore Protocol
Note: See section 3.
SECOND PROTOCOL AMENDING THE AGREEMENT BETWEEN THE GOVERNMENT OF THE COMMONWEALTH OF AUSTRALIA AND THE GOVERNMENT OF THE REPUBLIC OF SINGAPORE FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AS AMENDED BY THE PROTOCOL OF 16 OCTOBER 1989.
ARTICLE I
Article 19 of the Agreement is omitted and the following Article is substituted:"ARTICLE 19
1.
The competent authorities of the Contracting States shall exchange such information as is foreseeably relevant for carrying out the provisions of this Agreement or to the administration or enforcement of the domestic laws concerning taxes of every kind and description imposed on behalf of the Contracting States, insofar as the taxation thereunder is not contrary to the Agreement. The exchange of information is not restricted by Articles 1A and 1.
2.
Any information received under paragraph 1 by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to the taxes referred to in paragraph 1, or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
3.
In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation:
a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;
b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public).
4.
If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other State may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting State to decline to supply information solely because it has no domestic interest in such information.
5.
In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person."
ARTICLE II
The Government of Australia and the Government of the Republic of Singapore shall notify each other through the diplomatic channel of the completion of their respective internal procedures required for the bringing into force of this Protocol which shall form an integral part of the Agreement. The Protocol shall enter into force on the thirtieth day after the date of the last notification, and thereupon the Protocol shall have effect.ARTICLE III
This Protocol, which shall form an integral part of the Agreement, shall remain in force as long as the Agreement remains in force and shall apply as long as the Agreement itself is applicable.IN WITNESS WHEREOF, the undersigned, duly authorised thereto, have signed this Protocol.
DONE in duplicate at Canberra, on this eighth day of September 2009.
For the Government of Australia: For the Government of the Republic of Singapore: Senator the Hon Nicholas Sherry HE Albert Chua Assistant Treasurer High Commissioner
Sch 5B inserted by No 115 of 2010, s 3 and Sch 1 item 7, effective 9 November 2010. The Protocol came into force 22 December 2010 (see Art II above for information on the coming into force of this Protocol).
(Repealed by No 45 of 2011)
History
Sch 6 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Japanese Convention from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 6 formerly read:
SCHEDULE 6 - CONVENTION BETWEEN AUSTRALIA AND JAPAN FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
Note:
See section 3.
ARTICLE 1 Persons Covered
This Convention shall apply to persons who are residents of one or both of the Contracting States.
ARTICLE 2 Taxes Covered
(1)
This Convention shall apply to the following existing taxes:
(a) in the case of Japan:
(i) the income tax; and(hereinafter referred to as "Japanese tax");
(ii) the corporation tax
(b) in the case of Australia:
(i) the income tax; and(hereinafter referred to as "Australian tax").
(ii) the petroleum resource rent tax
(2)
This Convention shall apply also to any identical or substantially similar taxes that are imposed by Japan or under the federal law of Australia after the date of signature of the Convention in addition to, or in place of, the existing taxes referred to in paragraph 1. The competent authorities of the Contracting States shall notify each other of any significant changes that have been made in the law of their respective Contracting States relating to the taxes to which the Convention applies within a reasonable period of time after such changes.
ARTICLE 3 General Definitions
(1)
For the purposes of this Convention, unless the context otherwise requires:
(a) the term "Japan", when used in a geographical sense, means all the territory of Japan, including its territorial sea, in which the laws relating to Japanese tax are in force, and all the area beyond its territorial sea, including the seabed and subsoil thereof, over which Japan has sovereign rights in accordance with international law and in which the laws relating to Japanese tax are in force;
(b) 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; andand includes any area adjacent to the territorial limits of Australia (including only 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 and the seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(c) the terms "a Contracting State" and "the other Contracting State" mean Japan or Australia, as the context requires;
(d) the term "tax" means Japanese tax or Australian tax, as the context requires;
(e) the term "person" includes an individual, a company and any other body of persons;
(f) the term "company" means any body corporate or any entity that is treated as a company or body corporate for tax purposes;
(g) the term "enterprise" applies to the carrying on of any business;
(h) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;
(i) the term "international traffic" means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State;
(j) the term "national", in relation to a Contracting State, means:
(i) any individual possessing the nationality or citizenship of that Contracting State; and
(ii) any juridical or legal person created or organised under the law of that Contracting State and any organisation without juridical or legal personality treated for the purposes of that Contracting State's tax as a juridical or legal person created or organised under the law of that Contracting State;
(k) the term "competent authority" means:
(i) in the case of Japan, the Minister of Finance or an authorised representative of the Minister of Finance; and
(ii) in the case of Australia, the Commissioner of Taxation or an authorised representative of the Commissioner of Taxation; and
(l) the term "business" includes the performance of professional services and of other activities of an independent character.
(2)
As regards the application of this Convention at any time by a Contracting State, 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 State concerning the taxes to which the Convention applies, any meaning under the applicable tax law of that Contracting State prevailing over a meaning given to the term under other law of that Contracting State.
ARTICLE 4 Resident
(1)
For the purposes of this Convention, the term "resident of a Contracting State" means:
(a) in the case of Japan, any person who, under the laws of Japan, is liable to tax therein by reason of the person's domicile, residence, place of head or main office, or any other criterion of a similar nature; and
(b) in the case of Australia, a person who is a resident of Australia for the purposes of Australian tax.The Government of a Contracting State or a political subdivision or local authority thereof is also a resident of that Contracting State for the purposes of the Convention. A person is not a resident of a Contracting State for the purposes of the Convention if the person is liable to tax in that Contracting State in respect only of income from sources in that Contracting State.
(2)
Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then the individual's status shall be determined as follows:
(a) the individual shall be deemed to be a resident only of the Contracting State in which the individual has a permanent home available to that individual; if that individual has a permanent home available to that individual in both Contracting States, or in neither of them, that individual shall be deemed to be a resident only of the Contracting State with which the individual's personal and economic relations are closer (centre of vital interests);
(b) if the Contracting State in which the individual's centre of vital interests is situated cannot be determined, the individual shall be deemed to be a resident only of the Contracting State of which that individual is a national;
(c) if the individual is a national of both Contracting States or of neither of them, the competent authorities of the Contracting States shall endeavour to resolve the question by mutual agreement.
(3)
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then the competent authorities of the Contracting States shall endeavour to determine by mutual agreement the Contracting State of which that person shall be deemed to be a resident for the purposes of this Convention, having regard to the place of its head or main office, its place of effective management and any other relevant factors.
(4)
In the absence of a mutual agreement under subparagraph c) of paragraph 2 or paragraph 3 a person who is a resident of both Contracting States by reason of the provisions of paragraph 1 shall not be considered a resident of either Contracting State for the purposes of claiming any benefits provided by this Convention, except those provided by Articles 26 and 27.
(5)
For the purposes of applying this Convention:
(a) an item of income, profits or gains:
(i) derived from a Contracting State through an entity that is organised in the other Contracting State; andshall be eligible for the benefits of the Convention that would be granted if it were directly derived by a beneficiary, member or participant of that entity who is a resident of that other Contracting State, to the extent that such beneficiaries, members or participants are residents of that other Contracting State and satisfy any other conditions specified in the Convention, without regard to whether the income, profits or gains are treated as the income, profits or gains of such beneficiaries, members or participants under the tax law of the first-mentioned Contracting State.
(ii) treated as the income, profits or gains of the beneficiaries, members or participants of that entity under the tax law of that other Contracting State,
(b) an item of income, profits or gains:
(i) derived from a Contracting State through an entity that is organised in the other Contracting State; andshall be eligible for the benefits of the Convention that would be granted to a resident of that other Contracting State, without regard to whether the income, profits or gains are treated as the income, profits or gains of the entity under the tax law of the first-mentioned Contracting State, if such entity is a resident of that other Contracting State and satisfies any other conditions specified in the Convention.
(ii) treated as the income, profits or gains of that entity under the tax law of that other Contracting State,
(c) an item of income, profits or gains:
(i) derived from a Contracting State through an entity that is organised in a state other than the Contracting States; andshall be eligible for the benefits of the Convention that would be granted if it were directly derived by a beneficiary, member or participant of that entity who is a resident of that other Contracting State, to the extent that such beneficiaries, members or participants are residents of that other Contracting State and satisfy any other conditions specified in the Convention, without regard to whether the income, profits or gains are treated as the income, profits or gains of such beneficiaries, members or participants under the tax law of the first-mentioned Contracting State or such state.
(ii) treated as the income, profits or gains of the beneficiaries, members or participants of that entity under the tax law of the other Contracting State,
(d) an item of income, profits or gains:
(i) derived from a Contracting State through an entity that is organised in a state other than the Contracting States; andshall not be eligible for the benefits of the Convention.
(ii) treated as the income, profits or gains of that entity under the tax law of the other Contracting State,
(e) an item of income, profits or gains:
(i) derived from a Contracting State through an entity that is organised in that Contracting State; andshall not be eligible for the benefits of the Convention.
(ii) treated as the income, profits or gains of that entity under the tax law of the other Contracting State,
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Convention, the term "permanent establishment" means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" includes especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources; and
(g) an agricultural, pastoral or forestry property.
(3)
A building site or construction or installation project constitutes a permanent establishment only if it lasts more than 12 months.
(4)
Notwithstanding the preceding paragraphs of this Article, where an enterprise of a Contracting State:
(a) undertakes supervisory or consultancy activities in the other Contracting State in connection with a building site or construction or installation project which is being undertaken in that other Contracting State, and those activities last more than 12 months;
(b) carries on activities (including the operation of substantial equipment) in the other Contracting State in the exploration for or exploitation of natural resources situated in that other Contracting State for a period or periods exceeding in the aggregate 90 days in any 12 month period; or
(c) operates substantial equipment in the other Contracting State (other than as provided in subparagraph b)) for a period or periods exceeding in the aggregate 183 days in any 12 month period,such activities shall be deemed to be performed through a permanent establishment that the enterprise has in that other Contracting State.
(5)
(a)The duration of activities under paragraphs 3 and 4 shall be determined by aggregating the periods during which activities are carried on in a Contracting State by associated enterprises provided that the activities carried on in that Contracting State by an enterprise are connected with the activities carried on in that Contracting State by its associated enterprise.
(b) The period during which two or more associated enterprises are carrying on concurrent activities shall be counted only once for the purpose of determining the duration of activities.
(c) For the purposes of this Article, an enterprise shall be deemed to be associated with another enterprise if:
(i) an enterprise participates directly or indirectly in the management, control or capital of the other enterprise; or
(ii) the same persons participate directly or indirectly in the management, control or capital of the enterprises.
(6)
Notwithstanding the preceding paragraphs of this Article, an enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character.
(7)
Notwithstanding the provisions of paragraphs 1 and 2, where a person - other than an agent of an independent status to whom the provisions of paragraph 8 apply - is acting on behalf of an enterprise and:
(a) has, and habitually exercises, in a Contracting State an authority to substantially negotiate on behalf of or conclude contracts in the name of the enterprise; or
(b) manufactures or processes in a Contracting State for the enterprise goods or merchandise belonging to the enterprise,that enterprise shall be deemed to have a permanent establishment in that Contracting State in respect of any activities which that person undertakes for that enterprise, unless the activities are limited to those mentioned in paragraph 6 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under paragraph 1.
(8)
An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that Contracting State through a person who is a broker, general commission agent or any other agent of an independent status, provided that the person is acting in the ordinary course of the person's business as such a broker or agent.
(9)
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other Contracting State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.
(10)
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph 7 of Article 11 and paragraph 5 of Article 12 whether there is a permanent establishment in a state other than the Contracting States, and whether an enterprise, not being an enterprise of either of the Contracting States, has a permanent establishment in a Contracting State.
ARTICLE 6 Income from Real Property
(1)
Income derived by a resident of a Contracting State from real property situated in the other Contracting State may be taxed in that other Contracting State.
(2)
The term "real property" shall have the meaning which it has under the law of the Contracting State in which the property in question is situated. The term shall in any case include:
(a) a lease of land and any other interest in or over land, whether improved or not;
(b) property accessory to real property;
(c) rights to which the provisions of general law respecting landed property apply;
(d) usufruct of real property;
(e) rights to explore for mineral, oil or gas deposits or other natural resources, and a right to work those deposits or resources; and
(f) rights to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources.Ships and aircraft shall not be regarded as real property.
(3)
Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
(4)
The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of real property.
(5)
The provisions of paragraphs 1, 3 and 4 shall also apply to the income from real property of an enterprise.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of a Contracting State shall be taxable only in that Contracting State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in that other Contracting State but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In determining the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment, including executive and general administrative expenses so incurred, and which would be deductible if the permanent establishment were an independent enterprise which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that Contracting State is inadequate to determine the profits to be attributed to a permanent establishment, provided that, on the basis of the available information, the determination of the profits of the permanent establishment is consistent with the principles stated in this Article.
(5)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(6)
For the purposes of the preceding paragraphs of this Article, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.
(7)
Where profits include items of income or gains which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article.
(8)
Nothing in this Article shall affect the application of any law of a Contracting State relating to tax imposed on profits from insurance with a person other than a resident of that Contracting State.
(9)
Where:
(a) a resident of a Contracting State is beneficially entitled, whether directly or through one or more interposed trusts, to a share of the profits derived from business carried on in the other Contracting State by the trustee of a trust (other than a trust which is treated as a company for tax purposes) in its capacity as trustee; and
(b) in relation to the carrying on of the business, that trustee, in accordance with the principles stated in Article 5, has a permanent establishment in that other Contracting State,the business carried on by the trustee shall be deemed to be a business carried on in that other Contracting State by that resident through a permanent establishment situated therein and the share of the profits shall be attributed to that permanent establishment.
ARTICLE 8 Shipping and Air Transport
(1)
Profits of an enterprise of a Contracting State derived from the operation of ships or aircraft in international traffic shall be taxable only in that Contracting State.
(2)
Notwithstanding the provisions of Article 2, provided that no political subdivision or local authority of Australia levies a tax similar to the local inhabitant taxes or the enterprise tax in Japan in respect of the operation of ships or aircraft in international traffic carried on by an enterprise of Japan, an enterprise of Australia shall be exempt from the local inhabitant taxes and the enterprise tax in Japan in respect of the operation of ships or aircraft in international traffic.
(3)
Notwithstanding the provisions of paragraph 1, profits of an enterprise of a Contracting State derived from the operation of ships or aircraft may be taxed in the other Contracting State to the extent that they are profits derived directly or indirectly from the operation of ships or aircraft confined solely to places in that other Contracting State.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise which are shipped in a Contracting State and are discharged at a place in that Contracting State shall be treated as profits from the operation of ships or aircraft confined solely to places in that Contracting State.
(5)
The provisions of the preceding paragraphs of this Article shall also apply to profits from the operation of ships or aircraft derived through participation in a pool service, joint business or other profit sharing arrangement.
ARTICLE 9 Associated Enterprises
(1)
Where:
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capitalof an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to have accrued to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
Nothing in this Article, other than paragraph 4, shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that Contracting State is inadequate to determine the profits accruing to an enterprise, provided that, on the basis of the available information, the determination of that tax liability of the enterprise is consistent with the principles stated in paragraph 1.
(3)
Where a Contracting State includes, in accordance with the provisions of paragraph 1 or 2, in the profits of an enterprise of that Contracting State - and taxes accordingly - profits on which an enterprise of the other Contracting State has been charged to tax in that other Contracting State and where the competent authorities of the Contracting States agree, upon consultation, that all or part of the profits so included are profits which might have been expected to have accrued to the enterprise of the first-mentioned Contracting State if the conditions operative between the two enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the other Contracting State shall make an appropriate adjustment to the amount of the tax charged therein on those agreed profits. In determining such adjustment, due regard shall be had to the other provisions of this Convention.
(4)
Notwithstanding the provisions of paragraphs 1 and 2, a Contracting State shall not change the profits of an enterprise of that Contracting State in the circumstances referred to in those paragraphs, if an enquiry into the profits of that enterprise is not initiated within seven years from the end of the taxable year in which the profits that would be subject to such change, but for the conditions referred to in those paragraphs, might have been expected to have accrued to that enterprise. The provisions of this paragraph shall not apply in the case of fraud or wilful default or if the inability to initiate an enquiry within the prescribed period is attributable to the actions or inaction of that enterprise.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of a Contracting State for the purposes of its tax, being dividends beneficially owned by a resident of the other Contracting State, may be taxed in that other Contracting State.
(2)
However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax and according to the law of that Contracting State, but the tax so charged shall not exceed:
(a) 5 per cent of the gross amount of the dividends if the beneficial owner of the dividends is a company which owns directly shares representing at least 10 per cent of the voting power of the company paying the dividends;
(b) 10 per cent of the gross amount of the dividends in all other cases.
(3)
Notwithstanding the provisions of paragraph 2, dividends shall not be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax if the beneficial owner of the dividends is a company that is a resident of the other Contracting State and that has owned directly shares representing at least 80 per cent of the voting power of the company paying the dividends for the 12 month period ending on the date on which entitlement to the dividends is determined and the company that is the beneficial owner of the dividends:
(a) is a qualified person by reason of the provisions of subparagraph c) of paragraph 2 of Article 23;
(b) has at least 50 per cent of the aggregate vote and value of its shares owned directly or indirectly by five or fewer companies referred to in subparagraph a); or
(c) is granted benefits with respect to those dividends under paragraph 5 of Article 23.
(4)
Notwithstanding the provisions of paragraphs 2 and 3, dividends paid by a company that is a resident of Japan and that is entitled to a deduction for dividends paid to its beneficiaries in computing its taxable income in Japan, being dividends beneficially owned by a resident of Australia, may also be taxed in Japan according to the law of Japan, but the tax so charged shall not exceed:
(a) 15 per cent of the gross amount of the dividends if more than 50 percent of the assets of such company consist, directly or indirectly, of real property situated in Japan;
(b) 10 per cent of the gross amount of the dividends in all other cases.
(5)
The provisions of paragraphs 2, 3 and 4 shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.
(6)
The term "dividends" as used in this Article means income from shares or other rights, not being debt-claims, participating in profits, as well as income or other distributions which are subjected to the same taxation treatment as income from shares by the law of the Contracting State of which the company making the distribution is a resident for the purposes of its tax.
(7)
(a) Distributions of income, profits or gains by a Real Estate Investment Trust (hereinafter referred to as a "REIT"), being distributions beneficially owned by a resident of Japan, may be taxed in Japan.
(b) However, such distributions may also be taxed in Australia according to the law of Australia, but the tax so charged shall not exceed 15 per cent of the gross amount of the distributions if the beneficial owner of the distributions is a resident of Japan other than a beneficial owner of the distributions which holds, or has held at any time in the 12 month period preceding the date on which the distributions are made, directly or indirectly, capital that represents at least 10 percent of the value of all the capital in the REIT.
(c) For the purposes of this paragraph, the term "Real Estate Investment Trust" means a managed investment trust created or organised under the laws of Australia which carries on a business consisting of investment, directly or indirectly, in real property for the main purpose of deriving rent.
(8)
The provisions of paragraphs 1, 2, 3, 4 and 7 shall not apply if the beneficial owner of the dividends or distributions, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident for the purposes of its tax (or, in the case of a REIT to which paragraph 7 applies, in Australia) through a permanent establishment situated therein and the holding in respect of which the dividends or distributions are paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
(9)
Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other Contracting State may not impose any tax on the dividends paid by the company - being dividends beneficially owned by a person who is not a resident of that other Contracting State - except insofar as the holding in respect of which such dividends are paid is effectively connected with a permanent establishment situated in that other Contracting State, nor subject the company's undistributed profits to a tax on the company's undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in that other Contracting State. However, in the case of dividends paid by a company which is deemed to be a resident only of a Contracting State by reason of the provisions of paragraph 3 of Article 4, the other Contracting State may tax such dividends to the extent that they are paid out of profits or income arising in that other Contracting State and, in the case of dividends beneficially owned by a resident of the first-mentioned Contracting State, according to the provisions of paragraphs 2 or 3.
(10)
A resident of a Contracting State shall not be considered the beneficial owner of the dividends paid by a resident of the other Contracting State for the purposes of its tax in respect of preferred shares or other similar interests if such preferred shares or other similar interests might not have been expected to have been established or acquired unless a person:
(a) that is not entitled to benefits with respect to dividends paid by a resident of that other Contracting State which are equivalent to, or more favourable than, those available under this Convention to a resident of the first-mentioned Contracting State; and
(b) that is not a resident of either Contracting State,owned equivalent preferred shares or other similar interests in the first-mentioned resident.
(11)
No relief shall be available under this Article if it was the main purpose or one of the main purposes of any person concerned with the assignment of the dividends or distributions, the creation or assignment of the shares or other rights in respect of which the dividends or distributions are paid, or the establishment, acquisition or maintenance of the company which is the beneficial owner of the dividends or distributions or the conduct of its operations to take advantage of this Article.
ARTICLE 11 Interest
(1)
Interest arising in a Contracting State and beneficially owned by a resident of the other Contracting State may be taxed in that other Contracting State.
(2)
However, such interest may also be taxed in the Contracting State in which it arises and according to the law of that Contracting State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
Notwithstanding the provisions of paragraph 2, interest arising in a Contracting State and beneficially owned by a resident of the other Contracting State shall not be taxed in the first-mentioned Contracting State if:
(a) the interest is derived by a Contracting State or a political subdivision or local authority thereof, by any other body exercising governmental functions in a Contracting State, or by the Bank of Japan or the Reserve Bank of Australia;
(b) the interest is derived by a financial institution which is unrelated to and dealing wholly independently with the payer. For the purpose of this Article, the term "financial institution" means a bank or other enterprise substantially deriving its profits by raising debt finance in the financial markets or taking deposits at interest and by using those funds in carrying on a business of providing finance; or
(c) the interest is derived by:
(i) in the case of Japan, the Japan Bank for International Cooperation, or the Nippon Export and Investment Insurance;
(ii) in the case of Australia, the Export Finance and Insurance Corporation, or a public authority that manages the investments of the Future Fund; and
(iii) any similar institution as may be agreed upon from time to time between the Governments of the Contracting States through an exchange of diplomatic notes.
(4)
Notwithstanding the provisions of paragraph 3, interest referred to in subparagraph b) of that paragraph may be taxed in the Contracting State in which it arises at a rate not exceeding 10 per cent of the gross amount ofthe interest if the interest is paid as part of an arrangement involving back-to-back loans or other arrangement that is economically equivalent and intended to have a similar effect to an arrangement involving back-to-back loans.
(5)
The term "interest" as used in this Article means income from debt-claims of every kind, whether or not secured by mortgage and whether or not carrying a right to participate in the debtor's profits, and in particular, interest from government securities and interest from bonds or debentures, including premiums and prizes attaching to such securities, bonds or debentures, and all other income that is subjected to the same taxation treatment as income from money lent by the tax law of the Contracting State in which the income arises. Income dealt with in Article 10 shall not be regarded as interest for the purposes of this Convention.
(6)
The provisions of paragraphs 1 and 2, subparagraph b) of paragraph 3 and paragraph 4 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises through a permanent establishment situated therein and the debt-claims or other rights in respect of which the interest is paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
(7)
Interest shall be deemed to arise in a Contracting State when the payer is a resident of that Contracting State for the purposes of its tax. Where, however, the person paying interest, whether such person is a resident of a Contracting State or not, has in a Contracting State or a state other than the Contracting States a permanent establishment in connection with which the indebtedness on which the interest is paid were incurred, and such interest is borne by such permanent establishment, then:
(a) if the permanent establishment is situated in a Contracting State, such interest shall be deemed to arise in that Contracting State; and
(b) if the permanent establishment is situated in a state other than the Contracting States, such interest shall not be deemed to arise in either Contracting State.
(8)
Where, by reason of a special relationship between the payer and the beneficial owner of the interest, or between both of them and some other person, the amount of the interest, having regard to the debt-claims or other rights for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Convention.
(9)
A resident of a Contracting State shall not be considered the beneficial owner of the interest arising in the other Contracting State in respect of a debt-claim or other right if such debt-claim or other right might not have been expected to have been established unless a person:
(a) that is not entitled to benefits with respect to the interest arising in that other Contracting State which are equivalent to, or more favourable than, those available under this Convention to a resident of the first-mentioned Contracting State; and
(b) that is not a resident of either Contracting State,owned an equivalent debt-claim or other right against the first-mentioned resident.
(10)
No relief shall be available under this Article if it was the main purpose or one of the main purposes of any person concerned with the assignment of the interest, the creation or assignment of the debt-claim or other rights in respect of which the interest is paid, or the establishment, acquisition or maintenance of the company which is the beneficial owner of the interest or the conduct of its operations to take advantage of this Article.
ARTICLE 12 Royalties
(1)
Royalties arising in a Contracting State and beneficially owned by a resident of the other Contracting State may be taxed in that other Contracting State.
(2)
However, such royalties may also be taxed in the Contracting State in which they arise and according to the law of that Contracting State, but the tax so charged shall not exceed 5 per cent of the gross amount of the royalties.
(3)
The term "royalties" as used 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 supply of scientific, technical, industrial or commercial knowledge or information;
(c) the supply of any assistance that is 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) or any such knowledge or information as is mentioned in subparagraph b);
(d) the use of, or the right to use:
(i) motion picture films; or
(ii) films or audio or video tapes or disks, or any other means of image or sound reproduction or transmission for use in connection with television, radio or other broadcasting; or
(e) total or partial forbearance in respect of the use or supply of any property or right referred to in this paragraph.
(4)
The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State inwhich the royalties arise through a permanent establishment situated therein and the property or right in respect of which the royalties are paid or credited is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is a resident of that Contracting State for the purposes of its tax. Where, however, the person paying royalties, whether such person is a resident of a Contracting State or not, has in a Contracting State or a state other than the Contracting States a permanent establishment in connection with which the liability to pay or credit the royalties was incurred, and such royalties are borne by such permanent establishment, then:
(a) if the permanent establishment is situated in a Contracting State, such royalties shall be deemed to arise in that Contracting State; and
(b) if the permanent establishment is situated in a state other than the Contracting States, such royalties shall not be deemed to arise in either Contracting State.
(6)
Where, by reason of a special relationship between the payer and the beneficial owner of the royalties, or between both of them and some other person, the amount of the royalties, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments or credits shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Convention.
(7)
A resident of a Contracting State shall not be considered the beneficial owner of the royalties arising in the other Contracting State in respect of the use of the property or right if such royalties might not have been expected to have been paid to the resident unless the resident paid royalties in respect of the same property or right to a person:
(a) that is not entitled to benefits with respect to royalties arising in that other Contracting State which are equivalent to, or more favourable than, those available under this Convention to a resident of the first-mentioned Contracting State; and
(b) that is not a resident of either Contracting State.
(8)
No relief shall be available under this Article if it was the main purpose or one of the main purposes of any person concerned with the assignment of the royalties, the creation or assignment of the property or right in respect of which the royalties are paid, or the establishment, acquisition or maintenance of the company which is the beneficial owner of the royalties or the conduct of its operations to take advantage of this Article.
ARTICLE 13 Alienation of Property
(1)
Income, profits or gains derived by a resident of a Contracting State from the alienation of real property referred to in Article 6 and situated in the other Contracting State may be taxed in that other Contracting State.
(2)
Income, profits or gains derived by a resident of a Contracting State from the alienation of shares in a company or of interests in a partnership, trust or other entity may be taxed in the other Contracting State where the shares or the interests derive at least 50 per cent of their value directly or indirectly from real property referred to in Article 6 and situated in that other Contracting State.
(3)
Unless the provisions of paragraph 2 are applicable, income, profits or gains derived by a resident of a Contracting State which are not subject to tax in that Contracting State from the alienation of shares issued by a company being a resident of the other Contracting State may be taxed in that other Contracting State, if:
(a) shares owned by the alienator (together with such shares owned by any other related or connected persons as may be aggregated therewith) amount to at least 25 per cent of the total issued shares of such company at any time during the taxable year in which the alienation takes place; and
(b) the total of the shares alienated by the alienator and such related or connected persons during that taxable year in which the alienation takes place amounts to at least 5 per cent of the total issued shares of such company.
(4)
Notwithstanding the provisions of paragraph 3, income, profits or gains from the alienation of property (other than real property) that forms part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise), may be taxed in that other Contracting State.
(5)
Income, profits or gains derived by an enterprise of a Contracting State from the alienation of ships or aircraft operated by that enterprise in international traffic, or of property (other than real property) pertaining to the operation of such ships or aircraft, shall be taxable only in that Contracting State.
(6)
Gains from the alienation of any property other than that referred to in the preceding paragraphs of this Article shall be taxable only in the Contracting State of which the alienator is a resident.
ARTICLE 14 Income from Employment
(1)
Subject to the provisions of Articles 15, 17 and 18, salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that Contracting State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other Contracting State.
(2)
Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned Contracting State if:
(a) the recipient is present in the other Contracting State for a period or periods not exceeding in the aggregate 183 days in any 12 month period commencing or ending in the taxable year of that other Contracting State;
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of the other Contracting State; and
(c) the remuneration is not borne by a permanent establishment which the employer has in the other Contracting State.
(3)
Notwithstanding the preceding paragraphs of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic by an enterprise of a Contracting State may be taxed in that Contracting State.
ARTICLE 15 Directors' Fees
Directors' fees and other similar payments derived by a person who is a resident of a Contracting State in that person's capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other Contracting State.ARTICLE 16 Entertainers and Sportspersons
(1)
Notwithstanding the provisions of Articles 7 and 14, income derived by a person who is a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson, from that person's personal activities as such exercised in the other Contracting State, may be taxed in that other Contracting State.
(2)
Where income in respect of personal activities exercised by an entertainer or a sportsperson in that person's capacity as such accrues not to that person but to another person, that income may, notwithstanding the provisions of Articles 7 and 14, be taxed in the Contracting State in which the activities of the entertainer or sportsperson are exercised.
ARTICLE 17 Pensions and Annuities
(1)
Subject to the provisions of paragraph 2 of Article 18, pensions and other similar remuneration paid periodically to an individual who is a resident of a Contracting State shall be taxable only in that Contracting State.
(2)
Annuities paid to an individual who is a resident of a Contracting State shall be taxable only in that Contracting State.
(3)
Lump sums in lieu of the right to receive a pension or other similar remuneration, or to receive an annuity, paid to an individual who is a resident of a Contracting State shall be taxable only in that Contracting State. However, such lump sums may also be taxed in the other Contracting State if they arise in that other Contracting State.
(4)
The term "annuity" means a stated sum payable periodically at stated times during the life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
ARTICLE 18 Government Service
(1)
(a) Salaries, wages and other similar remuneration paid by a Contracting State or a political subdivision or local authority thereof to an individual in respect of services rendered to that Contracting State or political subdivision or local authority, in the discharge of functions of a governmental nature, shall be taxable only in that Contracting State.
(b) However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that other Contracting State and the individual is a resident of that other Contracting State who:
(i) is a national of that other Contracting State; or
(ii) did not become a resident of that other Contracting State solely for the purpose of rendering the services.
(2)
(a) Notwithstanding the provisions of paragraph 1, pensions and other similar remuneration paid periodically by, or out of funds to which contributions are made or created by, a Contracting State or a political subdivision or local authority thereof to an individual in respect of services rendered to that Contracting State or political subdivision or local authority shall be taxable only in that Contracting State.
(b) However, such pensions and other similar remuneration shall be taxable only in the other Contracting State if the individual is a resident of, and a national of, that other Contracting State.
(3)
The provisions of Articles 14, 15, 16 and 17 shall apply to salaries, wages, pensions, and other similar remuneration in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or local authority thereof.
ARTICLE 19 Students
Payments which a student or business apprentice who is or was immediately before visiting a Contracting State a resident of the other Contracting State and who is temporarily present in the first-mentioned Contracting State solely for the purpose of that person's education or training receives for the purpose of that person's maintenance, education or training shall not be taxed in the first-mentioned Contracting State, provided that such payments arise from sources outside that first-mentioned Contracting State. The exemption provided by this Article shall apply to a business apprentice only for a period not exceeding one year from the date the person first begins that person's training in the first-mentioned Contracting State.ARTICLE 20 Sleeping Partnership (Tokumei Kumiai)
Notwithstanding any other provisions of this Convention, other than those of Article 26, any income, profits or gains derived by a sleeping partner in respect of a sleeping partnership (Tokumei Kumiai) contract or other similar contract may betaxed in the Contracting State in which such income, profits or gains arise, and according to the laws of that Contracting State.ARTICLE 21 Other Income
(1)
Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Convention shall be taxable only in that Contracting State.
(2)
The provisions of paragraph 1 shall not apply to income, other than income from real property as defined in paragraph 2 of Article 6, derived by a resident of a Contracting State who carries on business in the other Contracting State through a permanent establishment situated therein and the property or right in respect of which the income is paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
(3)
Notwithstanding the provisions of paragraphs 1 and 2, items of income of a resident of a Contracting State not dealt with in the foregoing Articles of this Convention from sources in the other Contracting State may also be taxed in that other Contracting State.
ARTICLE 22 Source of Income
(1)
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8 and 10 to 18, may be taxed in the other Contracting State shall for the purposes of the law of that other Contracting State relating to its tax be deemed to arise from sources in that other Contracting State.
(2)
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8, 10 to 18 and 20, may be taxed in the other Contracting State shall for the purposes of Article 25 and of the law of the first-mentioned Contracting State relating to its tax be deemed to arise from sources in the other Contracting State.
ARTICLE 23 Limitation on Benefits
(1)
Except as otherwise provided in this Article, a resident of a Contracting State that derives income, profits or gains described in Article 7; in paragraph 3 of Article 10 or paragraph 3 of Article 11; or in Article 13 from the other Contracting State shall be entitled to the benefits granted for a taxable year by the provisions of those paragraphs or Articles only if such resident is a qualified person as defined in paragraph 2 and satisfies any other specified conditions in those paragraphs or Articles for the obtaining of such benefits.
(2)
A resident of a Contracting State shall be a qualified person for a taxable year only if such resident is either:
(a) an individual;
(b) a qualified governmental entity;
(c) a company (including a company participating in a dual listed company arrangement), if its principal class of shares is listed or registered on a recognised stock exchange specified in clause (i) or (ii) of subparagraph d) of paragraph 6 and is regularly traded on one or more recognised stock exchanges;
(d) a person other than an individual or a company, if the principal class of units in that person is listed or admitted to dealings on a recognised stock exchange specified in clause (i) or (ii) of subparagraph d) of paragraph 6 and is regularly traded on one or more recognised stock exchanges;
(e) a pension fund, provided that as of the end of the prior taxable year more than 50 per cent of its beneficiaries, members or participants are individuals who are residents of either Contracting State;
(f) an organisation established under the law of that Contracting State and operated exclusively for a religious, charitable, educational, scientific, artistic, cultural or public purposes, provided that all or part of its income, profits or gains may be exempt from tax under the domestic law of that Contracting State; or
(g) a person other than an individual, if residents of either Contracting State that are qualified persons by reason of the provisions of subparagraphs a) to f) of this paragraph own, directly or indirectly, at least 50 per cent of the aggregate vote and value of the shares of the person, or at least 50 per cent of the beneficial interests in the person.
(3)
Where the provisions of subparagraph g) of paragraph 2 apply:
(a) in respect of taxation by withholding at source, a resident of a Contracting State shall be considered to satisfy the conditions described in that subparagraph for the taxable year in which the payment is made if such resident satisfies those conditions during the 12 month period preceding the date of payment of an item of income, profits or gains (or, in the case of dividends, the date on which entitlement to the dividends is determined);
(b) in all other cases, a resident of a Contracting State shall be considered to satisfy the conditions described in that subparagraph for the taxable year in which the payment is made if such resident satisfies those conditions on at least half the days of the taxable year.
(4)
(a) Notwithstanding that a resident of a Contracting State may not be a qualified person, that resident shall be entitled to the benefits granted by the provisions of Article 7; of paragraph 3 of Article 10 or paragraph 3 of Article 11; or of Article 13 with respect to an item of income, profits or gains described in those paragraphs or Articles derived from the other Contracting State if the resident is carrying on business in the first-mentioned Contracting State (other than the business of making or managing investments for the resident's own account, unless the business is banking, insurance or securities business carried on by a bank, insurance company or securities dealer), the income, profits or gains derived from the other Contracting State are derived in connection with, or are incidental to, that business and that resident satisfies any other specified conditions in those paragraphs or Articles for the obtaining of such benefits.
(b) If a resident of a Contracting State derives anitem of income, profits or gains from a business carried on by that resident in the other Contracting State or derives an item of income, profits or gains arising in the other Contracting State from a person that has with the resident a relationship described in subparagraph a) or b) of paragraph 1 of Article 9, the conditions described in subparagraph a) of this paragraph shall be considered to be satisfied with respect to such an item of income, profits or gains only if the business carried on in the first-mentioned Contracting State is substantial in relation to the business carried on in the other Contracting State. Whether such business is substantial for the purpose of this paragraph shall be determined on the basis of all the facts and circumstances.
(c) In determining whether a person is carrying on business in a Contracting State under subparagraph a) of this paragraph, the business conducted by a partnership in which that person is a partner and the business conducted by persons connected to such person shall be deemed to be conducted by such person. A person shall be connected to another if one possesses, directly or indirectly, at least 50 per cent of the beneficial interests in the other (or, in the case of a company, at least 50 per cent of the aggregate vote and value of the shares of the company) or another person possesses, directly or indirectly, at least 50 per cent of the beneficial interests (or, in the case of a company, at least 50 per cent of the aggregate vote and value of the shares of the company) in each person. In any case, a person shall be considered to be connected to another if, on the basis of all the facts and circumstances, one has control of the other or both are under the control of the same person or persons.
(5)
A resident of a Contracting State that is neither a qualified person nor entitled under paragraph 4 to the benefits granted by the provisions of Article 7; of paragraph 3 of Article 10 or paragraph 3 of Article 11; or of Article 13 with respect to an item of income, profits or gains described in those paragraphs or Articles shall, nevertheless, be granted such benefits if the competent authority of the other Contracting State determines, in accordance with its domestic law or administrative practice, that the establishment, acquisition or maintenance of such resident and the conduct of its operations are considered as not having the obtaining of such benefits as one of the principal purposes.
(6)
For the purposes of this Article:
(a) the term "qualified governmental entity" means entities referred to in subparagraphs a) and c) of paragraph 3 of Article 11;
(b) the term "principal class of shares" means the ordinary shares of the company, provided that such class of shares represents the majority of the voting power and value of the company. If no single class of ordinary shares represents the majority of the voting power and value of the company, the principal class of shares is that class or those classes that in the aggregate represent a majority of the voting power and value of the company. For the purposes of the preceding sentences, in the case of a company participating in a dual listed company arrangement, the principal class of shares will be determined after excluding the special voting shares which were issued as a means of establishing that dual listed company arrangement;
(c) the term "dual listed company arrangement" means an arrangement pursuant to which two publicly listed companies, while maintaining their separate legal entity status, shareholdings and listings, align their strategic directions and the economic interests of their respective shareholders through:
(i) the appointment of common (or almost identical) boards of directors;
(ii) management of the operations of the two companies on a unified basis;
(iii) equalised distributions to shareholders in accordance with an equalisation ratio applying between the two companies, including in the event of a winding up of one or both of the companies;
(iv) the shareholders of both companies voting in effect as a single decision-making body on substantial issues affecting their combined interests; and
(v) cross-guarantees as to, or similar financial support for, each other's material obligations or operations except where the effect of the relevant regulatory requirements prevents such guarantees or financial support;
(d) the term "recognised stock exchange" means:
(i) any stock exchange established by a Financial Instruments Exchange or an approved-type financial instruments firms association under the terms of the Financial Instruments and Exchange Law (Law No.25 of 1948) of Japan;
(ii) the Australian Securities Exchange and any other securities exchange recognised as such under the Corporations Act 2001 of Australia; and
(iii) any other stock exchange which the competent authorities of the Contracting States agree to recognise for the purposes of this Article;
(e) the term "units" includes any instrument, not being a debt-claim, granting an entitlement to share in the asset or income of, or receive a distribution from, the person;
(f) the term "principal class of units" means the class of units which represents the majority of the value of the person. If no single class of units represents the majority of the value of the person, the principal class of units is that class or those classes that in the aggregate represent the majority of the value of the person; and
(g) the term "pension fund" means any person that:
(i) is established under the law of a Contracting State; and
(ii) is operated principally to administer or provide pensions, retirement benefits or other similar remuneration or to earn income, profits or gains for the benefit of other pension funds.
(7)
Nothing in this Article shall be construed as restricting, in any manner, the application of any provisions of the law of a Contracting State which are designed to prevent the avoidance or evasion of taxes.
ARTICLE 24 Limitation of Relief
(1)
Where under this Convention any income, profits or gains are relieved from tax in a Contracting State and, under the law in force in the other Contracting State, an individual, in respect of that income or those profits or gains, is taxed by reference to the amount thereof that is remitted to or received in that other Contracting State and not by reference to the full amount thereof, then the relief to be allowed under the Convention in the first-mentioned Contracting State shall apply only to so much of that income or those profits or gains as is taxed in the other Contracting State.
(2)
Where under this Convention any income, profits or gains are relieved from tax in a Contracting State and, under the law in force in the other Contracting State, an individual, in respect of that income or those profits or gains, is exempt from tax by virtue of being a temporary resident of that other Contracting State within the meaning of the applicable law of that other Contracting State, then the relief to be allowed under the Convention in the first-mentioned Contracting State shall not apply to the extent that that income or those profits or gains are exempt from tax in the other Contracting State.
ARTICLE 25 Elimination of Double Taxation
(1)
Subject to the provisions of the laws of Japan regarding the allowance as a credit against Japanese tax of tax payable in any country other than Japan:
(a) Where a resident of Japan derives income from Australia which may be taxed in Australia in accordance with the provisions of this Convention, the amount of Australian tax payable in respect of that income shall be allowed as a credit against the Japanese tax imposed on that resident. The amount of credit, however, shall not exceed that part of the Japanese tax which is appropriate to that income.
(b) Where the income derived from Australia is dividends paid by a company which is a resident of Australia to a company which is a resident of Japan and which has owned at least 10 per cent either of the voting shares or of the total issued shares of the company paying the dividends during the period of six months immediately before the day when the obligation to pay dividends is confirmed, the credit shall take into account Australian tax payable by the company paying the dividends in respect of its income.
(2)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article), Japanese tax paid under the law of Japan and in accordance with this Convention, whether directly or by deduction, in respect of income, profits or gains derived by a person who is a resident of Australia from sources in Japan shall be allowed as a credit against Australian tax payable in respect of that income, profits or gains.
ARTICLE 26 Non-Discrimination
(1)
Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other Contracting State in the same circumstances, in particular with respect to residence, are or may be subjected. The provisions of this paragraph shall, notwithstanding the provisions of Article 1, also apply to persons who are not residents of one or both of the Contracting States.
(2)
The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other Contracting State than the taxation levied on enterprises of that other Contracting State carrying on the same activities in similar circumstances. The provisions of this paragraph shall not be construed as obliging a Contracting State to grant to individuals who are residents of the other Contracting State any personal allowances, reliefs and reductions for taxation purposes which it grants to its own residents.
(3)
Except where the provisions of paragraph 1 of Article 9, paragraph 8 of Article 11, or paragraph 6 of Article 12, apply, interest, royalties and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the first-mentioned Contracting State.
(4)
Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of the first-mentioned Contracting State in similar circumstances are or may be subjected.
(5)
The provisions of this Article shall, notwithstanding the provisions of Article 2, apply to taxes of every kind and description imposed by a Contracting State or a political subdivision or local authority thereof.
ARTICLE 27 Mutual Agreement Procedure
(1)
Where a person considers that the actions of one or both of the Contracting States result or will result for the person in taxation not in accordance with the provisions of this Convention, the person may, irrespective of the remedies provided by the domestic law of those Contracting States, present a case to the competent authority of the Contracting State of which the person is a resident or, if the case comes under paragraph 1 of Article 26, to that of the Contracting State of which the person is a national. The case must be presented within three years from the first notification of the action resulting in taxation not in accordance with the provisions of the Convention.
(2)
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with the provisions of this Convention. Any agreement reached shall be implemented notwithstanding any time limits in the domestic law of the Contracting States.
(3)
The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of this Convention. They may also consult together for the elimination of double taxation in cases not provided for in the Convention.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs of this Article.
(5)
For the purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding the provisions of that paragraph, any dispute between them as to whether a measure falls within the scope of this Convention may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph 3 of this Article or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States.
ARTICLE 28 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is foreseeably relevant for carrying out the provisions of this Convention or to the administration or enforcement of the domestic law concerning taxes of every kind and description imposed on behalf of the Contracting States, insofar as the taxation thereunder is not contrary to the Convention. The exchange of information is not restricted by Articles 1 and 2.
(2)
Any information received under paragraph 1 by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic law of that Contracting State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to the taxes referred to in paragraph 1, or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
(3)
In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the law and administrative practice of that or of the other Contracting State;
(b) to supply information which is not obtainable under the law or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy.
(4)
If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other Contracting State may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting State to decline to supply information solely because it has no domestic interest in such information.
(5)
In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person.
ARTICLE 29 Members of Diplomatic Missions and Consular Posts
Nothing in this Convention shall affect the fiscal privileges of members of diplomatic missions or consular posts under the general rules of international law or under the provisions of special international agreements.ARTICLE 30 Headings
The headings of the Articles of this Convention are inserted for convenience of reference only and shall not affect the interpretation of the Convention.ARTICLE 31 Entry into Force
(1)
This Convention shall be approved in accordance with the legal procedures of each of the Contracting States and shall enter into force on the thirtieth day after the date of exchange of diplomatic notes indicating such approval.
(2)
This Convention shall be applicable:
(a) in the case of Japan:
(i) with respect to taxes withheld at source, for amounts taxable on or after 1 January in the calendar year next following that in which the Convention enters into force;
(ii) with respect to taxes on income which are not withheld at source, as regards income for any taxable year beginning on or after 1 January in the calendar year next following that in which the Convention enters into force; and
(iii) with respect to other taxes, as regards taxes for any taxable year beginning on or after 1 January in the calendar year next following that in which the Convention enters into force; and
(b) in the case of Australia:
(i) with respect to withholding tax on income that is derived by a resident of Japan, in relation to income derived on or after 1 January in the calendar year next following that in which the Convention enters into force; and
(ii) with respect to other taxes, as regards any taxable year beginning on or after 1 July in the calendar year next following that in which the Convention enters into force.
(3)
The Agreement between Japan and the Commonwealth of Australia for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income signed at Canberra on 20 March, 1969 (hereinafter referred to as "the prior Agreement") shall cease to be effective from the date upon which this Convention has effect in respect of the taxes to which the Convention applies in accordance with the provisions of paragraph 2.
(4)
The prior Agreement shall terminate on the last date on which it has effect in accordance with this Article.
(5)
Notwithstanding the entry into force of this Convention, an individual who is entitled to the benefits of Article 15 of the prior Agreement at the time of the entry into force of the Convention shall continue to be entitled to such benefits until such time as the individual would have ceased to be entitled to such benefits if the prior Agreement had remained in force.
ARTICLE 32 Termination
This Convention shall remain in force until terminated by a Contracting State. Either Contracting State may terminate the Convention after the expiration of a period of five years from the date of its entry into force, by giving to the other Contracting State, through the diplomatic channel, six months prior written notice of termination. In such event, the Convention shall cease to have effect:
(a) in the case of Japan:
(i) with respect to taxes withheld at source, for amounts taxable on or after 1 January in the calendar year next following the expiration of the six month period;
(ii) with respect to taxes on income which are not withheld at source, as regards income for any taxable year beginning on or after 1 January in the calendar year next following the expiration of the six month period; and
(iii) with respect to other taxes, as regards taxes for any taxable year beginning on or after 1 January in the calendar year next following the expiration of the six month period; and
(b) in the case of Australia:
(i) with respect to withholding tax on income that is derived by a resident of Japan, in relation to income derived on or after 1 January in the calendar year next following the expiration of the six month period; and
(ii) with respect to other taxes, as regards any taxable year beginning on or after 1 July in the calendar year next following the expiration of the six month period.IN WITNESS WHEREOF the undersigned, being duly authorised thereto by their respective Governments, have signed this Convention.
DONE in duplicate at Tokyo this thirty-first day of January, 2008, in the English and Japanese languages, each text being equally authentic.
PROTOCOL
For Australia For Japan Hon. Stephen Smith Hon. Masahiko Koumura Minister for Foreign Affairs Minister for Foreign Affairs [Signatures omitted]
SECTION (1)
(1)
With reference to subparagraph b) of paragraph 1 of Article 2 (Taxes Covered) of the Convention:The term "the petroleum resource rent tax" means the resource rent tax, in respect of offshore projects relating to the exploration for or exploitation of petroleum resources, imposed under the Petroleum Resource Rent Tax Act 1987.
SECTION (2)
(2)
With reference to subparagraph d) of paragraph 1 of Article 3 (General Definitions) of the Convention:The term "Australian tax" or "Japanese tax" shall not include any amount which represents a penalty or interest imposed under the laws of Australia or Japan, respectively, relating to the taxes to which the Convention applies.
SECTION (3)
(3)
With reference to paragraph 2 of Article 4 (Resident) of the Convention:It is understood that the fact of having an habitual abode in a Contracting State rather than in the other Contracting State shall be taken into account in determining where the individual's centre of vital interests is situated.
SECTION (4)
(4)
With reference to paragraph 3 of Article 4 (Resident) of the Convention:It is understood that the term "any other relevant factors" includes:
(a) where the senior day-to-day management is carried on;
(b) which Contracting State's law governs the legal status;
(c) where the accounting records are held; and
(d) where business is carried on.
SECTION (5)
(5)
With reference to subparagraphs b) and c) of paragraph 4 of Article 5 (Permanent Establishment) of the Convention:
(a) It is understood that an enterprise of a Contracting State shall not be considered to operate equipment in the other Contracting State where the enterprise leases equipment under a lease contract that is solely for the provision of equipment, including a bareboat lease contract.
(b) It is understood that the factors of size, quantity or value of equipment or the role of equipment in income producing activities are relevant in determining whether the equipment is substantial on the basis of the facts and circumstances of each particular case.
(c) It is understood that the term "substantial equipment" may include:
(i) industrial earthmoving equipment or construction equipment used in road building, dam building or powerhouse construction;
(ii) manufacturing or processing equipment used in a factory; and
(iii) oil or drilling rigs, platforms and other structures used in the petroleum or mining industry.
SECTION (6)
(6)
With reference to paragraph 7 of Article 5 (Permanent Establishment) of the Convention:It is understood that the term "substantially negotiate" is included in order to remove any doubt as to the existence of a permanent establishment where contracts that have been negotiated by an agent in a Contracting State are formally concluded in the other Contracting State.
SECTION (7)
(7)
With reference to Articles 6 (Income from Real Property), 7 (Business Profits), 21 (Other Income) and 22 (Source of Income) of the Convention:It is understood that nothing in these Articles shall prevent a Contracting State from applying its domestic tax law in the case where income is derived by a resident of that Contracting State from real property situated in that Contracting State, even where such a resident carries on business in the other Contracting State through a permanent establishment situated therein and the real property is effectively connected with such permanent establishment. In this case, such income shall not be deemed to arise from sources in that other Contracting State for the purposes of applying the domestic tax law of the first-mentioned Contracting State.
SECTION (8)
(8)
With reference to subparagraph f) of paragraph 2 of Article 6 (Income from Real Property) of the Convention:It is understood that the rights referred to in that subparagraph principally cover:
(a) rights to receive payments where the person receiving the payments grants rights to explore for or exploit natural resources; and
(b) rights to receive payments which arise or are quantified by reference to the exploitation of, or exploration for, natural resources in circumstances where the person receiving the payments may not have an interest in the natural resources or rights over the extraction of, or exploration for, natural resources.
SECTION (9)
(9)
With reference to Articles 7 (Business Profits) and 13 (Alienation of Property) of the Convention:It is understood that, where an enterprise of a Contracting State which has carried on business in the other Contracting State through a permanent establishment situated therein, receives, after the enterprise has ceased to carry on business as aforesaid, income, profits or gains attributable to the permanent establishment, such income, profits or gains may be taxed in that other Contracting State in accordance with the principles stated in Articles 7 and 13 of the Convention.
SECTION (10)
(10)
With reference to paragraph 6 of Article 7 (Business Profits) of the Convention:It is understood that, for the purposes of the paragraph, a good and sufficient reason to the contrary shall be considered to exist where there is an alternative method that gives the most appropriate determination of the profits in accordance with the principles contained in the Article.
SECTION (11)
(11)
With reference to subparagraph a) of paragraph 9 of Article 7 (Business Profits) of the Convention:It is understood that in the case of Japan the term "a trust which is treated as a company for tax purposes" means a trust, the trustee of which is subject to tax in respect of profits derived from business carried on by the use of trust estate.
SECTION (12)
(12)
With reference to Articles 10 (Dividends), 11 (Interest) and 12 (Royalties) of the Convention:The term "for the purposes of its tax" in relation to a resident of a Contracting State refers to the case where a person is a resident of a Contracting State by virtue of paragraph 1 of Article 4 of the Convention, even if the person is deemed to be a resident of the other Contracting State by virtue of paragraph 2 or 3 of that Article.
SECTION (13)
(13)
With reference to subparagraph a) of paragraph 3 of Article 11 (Interest) of the Convention:It is understood that the term "any other body exercising governmental function" shall be determined according to the law of the Contracting State in which the interest arises.
SECTION (14)
(14)
With reference to subparagraph b) of paragraph 3 of Article 11 (Interest) of the Convention:It is understood that:
(a) a financial institution shall be unrelated to a payer of the interest where, in considering the level of participation in the ownership or control of either the financial institution or the payer by the other party, neither party is able to exert sufficient influence over the other party;
(b) an enterprise shall derive its profits substantially by a certain activity, where the activity constitutes its main activity when compared to any other activity that it undertakes in terms of its contribution to the enterprise's overall profits.
SECTION (15)
(15)
With reference to paragraph 4 of Article 11 (Interest) of the Convention:It is understood that the term "arrangement involving back-to-back loans" would cover, inter alia, any kind of arrangement structured in such a way that a financial institution which is a resident of a Contracting State receives interest arising in the other Contracting State and the financial institution pays an equivalent interest to another person who is a resident of the first-mentioned Contracting State and, if it received the interest directly from the other Contracting State, would not be entitled to the exemption from tax with respect to that interest in that other Contracting State.
SECTION (16)
(16)
With reference to paragraph 3 of Article 12 (Royalties) of the Convention:The term "royalties" shall not include payments for the use of spectrum licences. The provisions of Article 7 of the Convention shall apply to such payments.
SECTION (17)
(17)
With reference to subparagraph e) of paragraph 3 of Article 12 (Royalties) of the Convention:It is understood that the term "forbearance in respect of the use or supply of any property or right" applies to cases where the holder of any property or right receives a payment or provides credits, as consideration, for not making such property or right available to another person.
SECTION (18)
(18)
With reference to paragraph 3 of Article 13 (Alienation of Property) of the Convention:It is understood that where, in the case of schemes of reorganisation of companies, the laws of a Contracting State allow for the taxation of the gains arising from the disposal of shares in a company to be deferred, such gains shall be regarded as subject to tax unless any part of the deferred gains is as a result of a later disposal or reorganisation subject to a statutory exemption under the laws of that Contracting State.
SECTION (19)
(19)
With reference to paragraph 1 of Article 25 (Elimination of Double Taxation) of the Convention:For the purposes of the paragraph, the income tax and the petroleum resource rent tax referred to in subparagraph b) of paragraph 1 of Article 2 of the Convention shall be treated as a unified tax on income.
SECTION (20)
(20)
With reference to Article 26 (Non-Discrimination) of the Convention:The provisions of the Article shall not apply to the following provisions of the laws of Australia:
(a) Subdivision A of Division 3 of Part III of the Income Tax Assessment Act 1936 (hereinafter referred to as "ITAA 1936"), which provides deductions to eligible taxpayers for research and development;
(b) Section 26-25 of Part 2-5 of Chapter 2 of the Income Tax Assessment Act 1997 (hereinafter referred to as "ITAA 1997"), which provides measures to ensure that taxes can be effectively collected and recovered, including conservancy measures under the general law; and
(c) any provision adopted after the date of signature of the Convention which is substantially similar in purpose or intent to a provision covered by this paragraph, or is otherwise agreed between the Governments of the Contracting States through an exchange of diplomatic notes.
SECTION (21)
(21)
With reference to Article 26 (Non-Discrimination) of the Convention:It is understood that nothing in the Article shall be construed as restricting the application of any of the following provisions of the laws of Australia:
(a) Subdivision D of Division 2 of Part III of the ITAA 1936, to the extent those provisions do not allow tax rebates or credits to non-resident taxpayers in relation to dividends paid by a company that is a resident of Australia for the purposes of its tax;
(b) Division 6AAA of Part III of the ITAA 1936, which provides for the taxation of certain residents in relation to non-resident trust estates;
(c) Division 13 of Part III of the ITAA 1936, which deals with transfer pricing;
(d) Section 177E of Part IVA of the ITAA 1936, which addresses dividend stripping arrangements;
(e) Part X of the ITAA 1936, which provides for the taxation of certain residents with interests in controlled foreign companies;
(f) Part XI of the ITAA 1936, which provides for the taxation of certain resident investors in foreign investment funds and foreign life assurance policies;
(g) Section 122-25 of Part 3-3 of Chapter 3 of the ITAA 1997, which does not permit the deferral of tax arising on the transfer of an asset, where the subsequent transfer of the asset by the transferee would be beyond the taxing jurisdiction of Australia under its laws;
(h) Part 3-90 of Chapter 3 of the ITAA 1997, which provides for consolidation of group entities for treatment as a single entity for tax purposes;
(i) Division 820 of Part 4-5 of Chapter 4 of the ITAA 1997, which addresses thin capitalisation; and
(j) any provision adopted after the date of signature of the Convention which is substantially similar in purpose or intent to a provision covered by this paragraph, or is otherwise agreed between the Governments of the Contracting States through an exchange of diplomatic notes.
SECTION (22)
(22)
With reference to paragraph 1 of Article 28 (Exchange of Information) of the Convention:In the case of Australia, the term "taxes of every kind and description imposed on behalf of the Contracting States" means taxes of every kind and description imposed under the federal tax laws administered by the Commissioner of Taxation.
SECTION (23)
(23)
It is understood that under paragraph 5 of Article 28 of the Convention a refusal to supply information held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or information relating to ownership interests must be based on reasons unrelated to the person's status as a bank, other financial institution, nominee, agent or fiduciary, or the fact that the information relates to ownership interests. It is also understood that under paragraph 5 of Article 28 a Contracting State may decline to supply information relating to confidential communications between attorneys, solicitors or other admitted legal representatives in their role as such and their clients to the extent that the communications are protected from disclosure under the domestic law of that Contracting State.IN WITNESS WHEREOF the undersigned, being duly authorised thereto by their respective Governments, have signed this Protocol.
DONE in duplicate at Tokyo this thirty-first day of January, 2008, in the English and Japanese languages, each text being equally authentic.
For Australia For Japan Hon. Stephen Smith Hon. Masahiko Koumura Minister for Foreign Affairs Minister for Foreign Affairs [Signatures omitted] (Japanese Note)
Translation
Tokyo, 31 January, 2008
Excellency:
I have the honour to refer to the Convention between Japan and Australia for the Avoidance of Double Taxation and the Prevention of FiscalEvasion with respect to Taxes on Income which was signed today (hereinafter referred to as "the Convention") and to the Protocol also signed today which forms an integral part of the Convention, and to make, on behalf of the Government of Japan, the following proposals:
1. It is understood that both Contracting States shall cooperate for the avoidance of double taxation through appropriate application of the provisions of the Convention and other necessary measures.
2. With reference to Article 9 (Associated Enterprises) of the Convention:
It is understood that both Contracting States shall undertake to conduct transfer pricing examinations of enterprises and evaluate applications for advance pricing arrangements in accordance with the Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations of the Organisation for Economic Cooperation and Development (hereinafter referred to as "the OECD Transfer Pricing Guidelines"), which reflect the international consensus with respect to these issues. The domestic transfer pricing rules, including the transfer pricing methods, of each Contracting State may be applied in resolving transfer pricing cases under the Convention only to the extent that they are consistent with the OECD Transfer Pricing Guidelines.
His Excellency
The Hon. Stephen Smith
Minister for Foreign Affairs
of Australia
3. With reference to paragraph 3 of Article 10 (Dividends) and subparagraph a) of paragraph 3 of Article 23 (Limitation on Benefits) of the Convention:
It is understood that the date on which entitlement to the dividends is determined is:
(a) in the case of Japan, the end of the accounting period for which the distribution of profits takes place; or
(b) in the case of Australia, the date the dividends are declared.If the foregoing understanding is acceptable to the Government of Australia, I have the honour to suggest that the present note and Your Excellency's reply to that effect should be regarded as constituting an agreement between the two Governments in this matter, which shall enter into force at the same time as the Convention.
I avail myself of this opportunity to extend to Your Excellency the assurance of my highest consideration.
Masahiko Koumura
Minister for Foreign Affairs
of Japan
[Signature omitted]
(Australian Note)
Tokyo, 31 January, 2008
Excellency:
I have the honour to acknowledge receipt of Your Excellency's Note of today's date which in translation reads as follows:
"(Japanese Note)"
The foregoing understanding being acceptable to the Government of Australia, I have the honour to confirm that Your Excellency's Note and this reply shall be regarded as constituting an agreement between the two Governments in this matter, which shall enter into force at the same time as the entry into force of the Convention.
I take this opportunity to extend to Your Excellency the assurance of my highest consideration.
Stephen Smith
Minister for Foreign Affairs
of Australia
[Signature omitted]
His Excellency
Mr. Masahiko Koumura
Minister for Foreign Affairs
of Japan
Sch 6 substituted by No 102 of 2008, s 3 and Sch 1 item 9, effective 3 October 2008. See Art 31 of this convention for information regarding entry into force. Sch 6 fomerly read:
SCHEDULE 6 - Japanese Agreement
Section 3
AGREEMENT BETWEEN THE COMMONWEALTH OF AUSTRALIA AND JAPAN FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1
(1)
The taxes to which this Agreement applies are-
(a) in Australia:
the Commonwealth income tax, including the additional tax upon the undistributed amount of the distributable income of a private company;
(b) in Japan:
the income tax and the corporation tax.
(2)
This Agreement applies also to any identical or substantially similar taxes which may be subsequently imposed by the Commonwealth or Japan in addition to, or in place of, the taxes referred to in the preceding paragraph.
(3)
In this Agreement, "Australian tax" means tax of the Commonwealth to which this Agreement applies; "Japanese tax" means tax of Japan to which this Agreement applies.
(4)
With respect to paragraph (2) of Article 6 only, this Agreement shall also apply to the taxes referred to in that paragraph.
ARTICLE 2
(1)
In this Agreement, unless the context otherwise requires-
(a) "the Commonwealth" means the Commonwealth of Australia;
(b) "Australia" means the Commonwealth and, when used in a geographical sense, includes-
(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; and
(v) any territory which, subsequent to the date of signature of this Agreement, becomes a Territory of the Commonwealth;
(c) "Japan", when used in a geographical sense, means all the territory in which the laws relating to Japanese tax are enforced;
(d) "Contracting State", "one of the Contracting States" and "other Contracting State" mean Australia or Japan, as the context requires;
(e) "resident in Japan" means a person who is resident in Japan under the law of Japan relating to Japanese tax; "resident of Australia" means a person who is a resident of Australia under the law in force in Australia relating to Australian tax;
(f) "Australian resident" means a person who is a resident of Australia and is not resident in Japan; "Japanese resident" means a person who is resident in Japan and is not a resident of Australia;
(g) "resident of one of the Contracting States", "resident of the other Contracting State" and "resident of that other Contracting State" mean an Australian resident or a Japanese resident, as the context requires;
(h) "person" includes a company and any other body of persons;
(i) "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an industrial or commercial enterprise carried on by an Australian resident or a Japanese resident, as the context requires;
(j) "company" includes any body or association corporate or un-incorporate which is treated as a company or body corporate for tax purposes;
(k) "competent authority" means, in the case of Australia, the Commissioner of Taxation or his authorised representative, and in the case of Japan, the Minister of Finance or his authorised representative;
(l) "tax" means Australian tax or Japanese tax, as the context requires.
(2)
Australian tax and Japanese tax do not include any amount which represents a penalty or interest imposed under the law in force in Australia or Japan relating to the taxes to which this Agreement applies.
(3)
Where under this Agreement income is relieved from tax in one of the Contracting States and, under the law in force in the other Contracting State, an individual, in respect of the said income, is subject to tax by reference to the amount thereof which is remitted to or received in that other Contracting State and not by reference to the full amount thereof, then the relief to be allowed under this Agreement in the first-mentioned Contracting State shall apply only to so much of the income as is remitted to or received in that other Contracting State.
(4)
Unless the context otherwise requires, any term of this Agreement not otherwise defined shall have, in a Contracting State, the meaning which it has under the laws in force in that Contracting State relating to the taxes to which this Agreement applies.
ARTICLE 3
(1)
For the purposes of this agreement, permanent establishment means a fixed place of trade or business in which the trade or business of the enterprise is wholly or partly carried on.
(2)
"Permanent establishment" includes-
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, quarry or other place of extraction of natural resources;
(g) land used for agricultural, pastoral or forestry purposes; and
(h) a building site or a construction, installation or assembly project which exists for more than six months.
(3)
"Permanent establishment" shall not be deemed to include-
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of trade or business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise; or
(e) the maintenance of a fixed place of trade or business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(4)
An enterprise of one of the Contracting States shall be deemed to have a permanent establishment in the other Contracting State if it carries on supervisory activities in that other Contracting State for more than six months in connection with a building site, or aconstruction, installation or assembly project which is being undertaken, in that other Contracting State.
(5)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State (other than an agent of independent status to whom paragraph (6) of this Article applies) shall be deemed to be a permanent establishment of that enterprise in the first-mentioned Contracting State-
(a) if he has, and habitually exercises in that first-mentioned Contracting State, an authority to conclude contracts on behalf of the enterprise, unless his activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) if in so acting he manufactures or processes in that first-mentioned Contracting State any goods for the enterprise.
(6)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on trade or business in that other Contracting State through a broker, a general commission agent or any other agent of independent status, where such a person is acting in the ordinary course of his business as a broker, a general commission agent or any other agent of independent status.
(7)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on trade or business in that other Contracting State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.
(8)
Where an enterprise of one of the Contracting States sells to a resident of the other Contracting State goods manufactured, assembled, processed, packed or distributed in that other Contracting State by an industrial or commercial enterprise for, or at, or to the order of, that first-mentioned enterprise and-
(a) either enterprise participates directly or indirectly in the management, control or capital of the other enterprise; or
(b) the same persons participate directly or indirectly in the management, control or capital of both enterprises,then, for the purposes of this Agreement, that first-mentioned enterprise shall be deemed to have a permanent establishment in that other Contracting State and to carry on trade or business in that other Contracting State through that permanent establishment.
ARTICLE 4
(1)
An enterprise of one of the Contracting States shall not be subject to tax in the other Contracting State in respect of its industrial or commercial profits unless it carries on trade or business in that other Contracting State through a permanent establishment therein. If it carries on trade or business as aforesaid, the enterprise may be subject to tax in that other Contracting State on those profits but only on so much of them as is attributable to that permanent establishment.
(2)
Where an enterprise of one of the Contracting States carries on trade or business in the other Contracting State through a permanent establishment in that other Contracting State, there shall be attributed to that permanent establishment the industrial or commercial profits which that permanent establishment might be expected to derive in that other Contracting State if it were an independent enterprise engaged in the same or similar activities and its dealings with the enterprise of which it is a permanent establishment were dealings at arm's length with that enterprise or an independent enterprise; and the profits so attributed shall be deemed to be income derived from sources in that other Contracting State and shall be taxed accordingly.
(3)
In determining the industrial or commercial profits attributable to a permanent establishment in one of the Contracting States, there shall be allowed as deductions all expenses of the enterprise, including ordinary executive and general administrative expenses, which would be deductible if the permanent establishment were an independent enterprise and which are reasonably allocable to the permanent establishment, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
In this Article "industrial or commercial profits" means profits derived by an enterprise from the conduct of a trade or business, but does not include-
(a) dividends, interest, rents or royalties (including those payments which come within the meaning of "royalties" for the purposes of Article 9) other than those that are effectively connected with a trade or business carried on through a permanent establishment in one of the Contracting States by an enterprise of the other Contracting State;
(b) income from operating ships or aircraft; or
(c) remuneration for personal (including professional) services.
ARTICLE 5
(1)
Where-
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State, or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and, in either case, conditions are operative between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing at arm's length with one another, then, if by reason of those circumstances profits which might be expected to accrue to one ofthe enterprises do not accrue to that enterprise, there may be included in the profits of that enterprise the profits which might have been expected so to accrue to it if it were an independent enterprise engaged in the same or similar activities and its dealings with the other enterprise were dealings at arm's length with that enterprise or an independent enterprise.
(2)
Profits included in the profits of an enterprise of one of the Contracting States under paragraph (1) of this Article shall be deemed to be income of that enterprise derived from sources in that Contracting State and shall be taxed accordingly.
ARTICLE 6
(1)
A resident of one of the Contracting States shall be exempt from tax in the other Contracting State on profits from the operation of ships or aircraft other than operations confined solely to places in that other Contracting State.
(2)
An Australian resident shall, in respect of the operation of ships or aircraft mentioned in paragraph (1) of this Article, be exempt from the enterprise tax in Japan to the extent that the basis of the tax is profits, and a Japanese resident shall, in respect of such operation, be exempt from any tax corresponding in nature to the enterprise tax which may hereafter be imposed by the Commonwealth, to the extent that the basis of the tax is profits.
(3)
The exemptions provided in paragraphs (1) and (2) of this Article shall apply to a share of the profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organisation or in an international operating agency, but only to the extent to which the share of the profits is not attributable to profits from operations confined solely to places in the other Contracting State.
(4)
For the purposes of this Article and Article 17, the carriage by ships or aircraft of passengers, livestock, mails or goods shipped in one of the Contracting States for discharge at another place in that Contracting State shall be deemed to be an operation of a ship or aircraft confined solely to places in that Contracting State.
ARTICLE 7
(1)
The Australian tax on dividends, being dividends paid by a company which is a resident of Australia, derived and beneficially owned by a Japanese resident, shall not exceed 15 per centum of the gross amount of the dividends.
(2)
The Japanese tax on dividends, being dividends paid by a company which is resident in Japan, derived and beneficially owned by an Australian resident, shall not exceed 15 per centum of the gross amount of the dividends.
(3)
Paragraphs (1) and (2) of this Article shall not apply if the beneficial owner of the dividends, being a resident of one of the Contracting States, has in the other Contracting State a permanent establishment and the holding giving rise to the dividends is effectively connected with a trade or business carried on through that permanent establishment.
(4)
Dividends paid by a company which is a Japanese resident, derived and beneficially owned by a person who is not a resident of Australia, shall be exempt from Australian tax.
(5)
Dividends paid by a company which is an Australian resident, derived and beneficially owned by a person who is not resident in Japan, shall be exempt from Japanese tax.
ARTICLE 8
(1)
The Australian tax on interest, derived and beneficially owned by a Japanese resident, shall not exceed 10 per centum of the gross amount of the interest.
(2)
The Japanese tax on interest, derived and beneficially owned by an Australian resident, shall not exceed 10 per centum of the gross amount of the interest.
(3)
Paragraphs (1) and (2) of this Article shall not apply if the beneficial owner of the interest, being a resident of one of the Contracting States, has in the other Contracting State a permanent establishment and the indebtedness giving rise to the interest is effectively connected with a trade or business carried on through that permanent establishment.
(4)
Where, owing to a special relationship between the payer and the beneficial owner of the interest, or between both of them and some other person, the amount of the interest paid exceeds the amount which might have been expected to have been agreed upon in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount.
ARTICLE 9
(1)
The Australian tax on royalties, derived and beneficially owned by a Japanese resident, shall not exceed 10 per centum of the gross amount of the royalties.
(2)
The Japanese tax on royalties, derived and beneficially owned by an Australian resident, shall not exceed 10 per centum of the gross amount of the royalties.
(3)
In this Article "royalties" means payments of any kind to the extent to which they are received as consideration for-
(a) the use of or the right to use any-
(i) copyright, patent, design or model, plan, secret formula or process, trade-mark, or other like property or right;
(ii) industrial, commercial or scientific equipment;
(iii) motion picture films; or
(iv) films or video tapes for use in connectionwith television or tapes for use in connection with radio broadcasting; or
(b) the supply of scientific, technical, industrial or commercial knowledge, information or assistance,but does not include royalties or other payments in respect of the operation of mines or quarries or of the exploitation of any natural resource.
(4)
Paragraphs (1) and (2) of this Article shall not apply if the beneficial owner of the royalties, being a resident of one of the Contracting States, has in the other Contracting State a permanent establishment and the knowledge, information, assistance, right or property giving rise to the royalties is effectively connected with a trade or business carried on through that permanent establishment.
(5)
Where, owing to a special relationship between the payer and the beneficial owner of the royalties, or between both of them and some other person, the amount of the royalties paid exceeds the amount which might have been expected to have been agreed upon in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount.
ARTICLE 10
Remuneration derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be subjected to tax only in that Contracting State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, such part of that income as is attributable to that base shall be deemed to have a source in, and may be taxed in, that other Contracting State.ARTICLE 11
(1)
Subject to Articles 13, 14 and 15, salaries, wages and other similar remuneration (other than pensions) derived by a resident of one of the Contracting States in respect of an employment shall be subject to tax only in that Contracting State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom shall be deemed to have a source in, and may be taxed in, that other Contracting State.
(2)
Notwithstanding paragraph (1) of this Article, remuneration derived by a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be exempt from tax in that other Contracting State if-
(a) the recipient is present in that other Contracting State for a period or periods not exceeding in the aggregate 183 days in the year of income or the taxable year as the case may be of that other Contracting State;
(b) the remuneration is paid by or on behalf of an employer who is not a resident of that other Contracting State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other Contracting State.
(3)
Notwithstanding paragraphs (1) and (2) of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that Contracting State.
(4)
The preceding provisions of this Article apply in relation to remuneration of a director of a company derived from the company as if the remuneration were remuneration of an employee in respect of an employment and as if references to employers were references to the company.
ARTICLE 12
(1)
Notwithstanding anything contained in Articles 10 and 11, income derived by public entertainers, such as theatre, motion picture, radio or television artistes, and musicians, and by athletes, from their personal activities as such shall be deemed to have a source in, and may be taxed in, the Contracting State in which these activities are exercised.
(2)
An enterprise of one of the Contracting States shall be deemed to have a permanent establishment in the other Contracting State if in the course of carrying on business it provides the services of public entertainers or athletes referred to in paragraph (1) of this Article in that other Contracting State and the public entertainer or athlete controls, directly or indirectly, such enterprise.
ARTICLE 13
(1)
A pension or an annuity, derived from sources within one of the Contracting States by an individual who is a resident of the other Contracting State, shall be exempt from tax in the first-mentioned Contracting State.
(2)
"Annuity" means a stated sum payable periodically at stated times, during life or during a specified or ascertainable period of time, under an obligation to make the payments in consideration of money paid or money's worth.
(3)
This Article shall not apply to a pension paid to an individual in respect of services rendered to the Government of the Commonwealth or the Government of Japan in the discharge of governmental functions.
ARTICLE 14
(1)
Remuneration (other than pensions) paid by the Government of the Commonwealth or of any State of the Commonwealth or by a local governing body in Australia to any individual for services rendered to that Government or body in the discharge of governmental functions shall be exempt from Japanese tax unless the individual is a national of Japan or is admitted to Japan for permanent residence therein.
(2)
Remuneration (other than pensions) paid by the Government of Japan or by a local governing body in Japan to any individual for services rendered to that Government or body in the discharge of governmental functions shall be exempt from Australian tax unless the individual is an Australian citizen or ordinarily resident in Australia.
(3)
This Article shall not apply to payments in respect of services rendered in connection with any trade or business carried on by a Government or local governing body referred to in paragraphs (1) or (2) of this Article.
ARTICLE 15
Where a professor or teacher, who is a resident of one of the Contracting States, is temporarily present in the other Contracting State for the purpose of teaching or conducting research during a period not exceeding two years at a university, college, school or other educational institution in that other Contracting State, remuneration derived by him for so teaching or conducting research for that period shall be exempt from tax in that other Contracting State.ARTICLE 16
A student who is, or was immediately before visiting one of the Contracting States, a resident of the other Contracting State and is present in the first-mentioned Contracting State solely for the purpose of his education shall not be taxed in that first-mentioned Contracting State on payments which he receives for the purpose of his maintenance or education, provided that such payments are made to him from outside that first-mentioned Contracting State.ARTICLE 17
(1)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia, Japanese tax paid, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Japan (excluding in the case of a dividend, tax paid in respect of the profits out of which the dividend is paid) shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
Subject to the provisions of the law of Japan from time to time in force which relate to the allowance of a credit against Japanese tax of tax paid in a country outside Japan, Australian tax paid, whether directly or by deduction, in respect of income derived by a person who is resident in Japan from sources in Australia shall be allowed as a credit against Japanese tax payable in respect of that income. Where such income is a dividend paid by a company which is an Australian resident to a company which is a Japanese resident and which owns not less than 10 per centum of the voting shares of the first-mentioned company or of the total shares issued by that company, the credit shall take into account the Australian tax paid by the first-mentioned company in respect of its profits.
(3)
For the purposes of this Article-
(a) dividends paid by a company which is a resident of one of the Contracting States shall be treated as having a source in that Contracting State;
(b) an amount of interest or royalties (including those payments which come within the meaning of "royalties" for the purposes of Article 9) derived by a resident of one of the Contracting States shall be treated as having a source in the other Contracting State where the amount-
(i) is paid by a Government in that other Contracting State or by a resident of that other Contracting State and is not incurred by the payer in carrying on a trade or business through a permanent establishment of the payer in a country outside that other Contracting State; or
(ii) is paid by a person who is not a resident of that other Contracting State and is incurred by the payer in carrying on trade or business through a permanent establishment of the payer in that other Contracting State;
(c) remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States shall be treated as having a source in that Contracting State;
(d) profits derived by a resident of one of the Contracting States from the operation of ships or aircraft, being profits from operations confined solely to places in the other Contracting State, shall be treated as having a source in that other Contracting State.
(4)
Where profits, on which an enterprise of one of the Contracting States has been charged to tax in that Contracting State, are also included, by virtue of this Agreement, in the profits of an enterprise of the other Contracting State as being profits which, because of the circumstances existing between the two enterprises, might have been expected to accrue to the enterprise of that other Contracting State, the profits so included shall be treated for the purposes of this Article as profits of the enterprise of the first-mentioned Contracting State from a source in that other Contracting State and relief shall be given in accordance with this Article in respect of the extra tax chargeable in that other Contracting State as a result of the inclusion of such profits.
(5)
For the purposes of sub-paragraph (b) of paragraph (3) of this Article "a Government in that other Contracting State" means in relation to Japan the Government of Japan or a local governing body in Japan and in relation to Australia means the Government of the Commonwealth or of a State of the Commonwealth or a local governing body in Australia.
ARTICLE 18
(1)
The competent authorities of the Contracting States shall exchange such information (being information available under the respective taxation laws of the Contracting States) as is necessary for carrying out the provisions of this Agreement or for the prevention of fraud or for the administration of statutory provisions against avoidance of the taxes to which this Agreement applies.
(2)
Any information so exchanged shall be treated as secret and shall not be disclosed to any persons or authorities other than those concerned with the assessment or collection of the taxes to which this Agreement applies, or the judicial determination of appeals in relation thereto.
(3)
No information shall be exchanged which would disclose any trade secret or trade process.
(4)
A competent authority shall not be obliged by this Article to disclose to the other competent authority any information which does not relate directly to the affairs of a taxpayer with whom that other competent authority is concerned.
ARTICLE 19
Where a taxpayer considers that the action of the competent authority of one of the Contracting States has resulted, or is likely to result, in double taxation contrary to the provisions of this Agreement, he shall be entitled to present the facts to the competent authority of the Contracting State of which he is a resident and, should the taxpayer's claim be deemed worthy of consideration, the competent authority of that Contracting State shall endeavour to come to an agreement with the competent authority of the other Contracting State with a view to the avoidance of the double taxation in question.ARTICLE 20
The competent authority of one of the Contracting States may communicate directly with the competent authority of the other Contracting State for the purpose of giving effect to the provisions of this Agreement and in an endeavour to assure its consistent interpretation and application.ARTICLE 21
(1)
This Agreement may be extended, either in its entirety or with any necessary modifications, to any territory for whose international relations Australia is responsible, which imposes taxes substantially similar in character to those to which this Agreement applies. Any such extension shall take effect from such date and subject to such modifications and conditions, including conditions as to termination, as may be specified and agreed between the Contracting States in notes to be exchanged through diplomatic channels or in any other manner in accordance with their constitutional procedures.
(2)
Unless otherwise agreed by both Contracting States, the termination of this Agreement under Article 23 shall terminate, in the manner provided for in that Article, the application of this Agreement to any territory to which it has been extended under this Article.
ARTICLE 22
(1)
This Agreement shall be ratified and the instruments of ratification shall be exchanged at Tokyo as soon as possible.
(2)
This Agreement shall enter into force on the thirtieth day after the date of exchange of instruments of ratification and shall have effect-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in respect of income derived on or after 1 July in the calendar year in which this Agreement enters into force;
(ii) in respect of other Australian tax, for any year of income beginning on or after 1 July in the calendar year in which this Agreement enters into force;
(b) in Japan-
in respect of income or profits for the taxable years beginning on or after 1 January in the calendar year in which this Agreement enters into force.
ARTICLE 23
This Agreement shall continue in effect indefinitely, but either Contracting State may, on or before 30 June in any calendar year beginning after the expiration of three years from the date of its entry into force, give to the other Contracting State, through diplomatic channels, written notice of termination, and, in such event, this Agreement shall cease to be effective-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in respect of income derived on or after the commencement of the financial year beginning on 1 July in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, for any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in Japan-in respect of income or profits for the taxable years beginning on or after 1 January in the calendar year next following that in which the notice of termination is given.
IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.
DONE in duplicate at Canberra on the twentieth day of March, One thousand nine hundred and sixty-nine, in the English and Japanese languages, each text being equally authentic.
PROTOCOL
WILLIAM McMAHON
For the Government of the Commonwealth of AustraliaFUMIHIKO KAI
For the Government of Japan
1.
Nothing in Article 4 shall affect the operation of Divisions 14 and 15 of Part III of the Income Tax Assessment Act 1936-1968 of the Commonwealth, or that Act as amended from time to time, relating to a film business controlled abroad and insurance with non-residents or the corresponding provisions of a statute substituted for that Act. For the purposes of Article 17, an amount included under the provisions of the Divisions in taxable income shall be deemed to be income derived from sources in Australia.
2.
In so far as it is customary in a Contracting State in determining the industrial or commercial profits derived by an enterprise from within the Contracting State to use methods of apportionment of the total profits of the enterprise to its various parts, including, in the case where profits derived from the sale by an enterprise of goods manufactured by it outside the Contracting State but sold by the enterprise in the Contracting State are being determined, a method which involves deducting from the sale price of the goods so sold in the Contracting State the amount for which goods of the same nature and quality could be purchased, at the date of shipment to the Contracting State, by a wholesaler in the country of manufacture and the expenses incurred in transporting them to and selling them in the Contracting State, those methods may be adopted for the purpose of the application of Article 4, provided that any such method shall be applied in such a way that the result accords with the principles stated in that Article.
3.
Nothing in Articles 4 and 5 shall affect the application of any law of a Contracting State relating to the determination of the tax liability of an enterprise in cases where the information available to the competent authority of that Contracting State is inadequate to determine the profits for the purposes of Article 4 and paragraph (1) of Article 5, provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles stated in Articles 4 and 5.
4.
For the purposes of Article 6 and Article 17, the carriage by ships or aircraft of passengers, livestock, mails or goods shipped in a place in Australia for discharge in the Territory of Papua, or the Trust Territory of New Guinea shall be treated as an operation of a ship or aircraft confined solely to places in Australia.
5.
Without prejudice to the position of the Government of Japan concerning the status in international law of the continental shelf, the Government of Japan agrees that the Government of the Commonwealth may, on income derived by a Japanese resident from or in connection with-
(a) the exploration for petroleum, of an area adjacent to Australia as specified in the Second Schedule to the Petroleum (Submerged Lands) Act 1967-1968, of the Commonwealth; or
(b) the exploitation of petroleum of such an area,levy tax in accordance with the provisions of the Agreement as if that area were part of Australia as defined in the Agreement and each Contracting State shall apply the provisions of the Agreement accordingly. Provided that this paragraph shall only apply if Australian tax law is in force in relation to the area.
6.
The Government of Japan agrees to the Government of the Commonwealth providing in its legislation giving the force of law to the Agreement that words in the Agreement in the singular include the plural and words therein in the plural include the singular, unless the context of the Agreement otherwise requires.DONE in duplicate at Canberra on the twentieth day of March, One thousand nine hundred and sixty-nine, in the English and Japanese languages, each text being equally authentic.
WILLIAM McMAHON
For the Government of the Commonwealth of AustraliaFUMIHIKO KAI
For the Government of Japan
Sch 6 inserted by No 24 of 1969.
Section 3
History
Act No 136 of 2007, s 3 and Sch 1 item 12, effective 3 September 2007, substitutes Sch 11 and 11A for a new Sch 11 (the 2006 French convention). The French Airline Profits Agreement was also terminated by the new convention coming into force (it is repealed by No 136 of 2007, s 3 and Sch 1 item 11). The convention came into force on 1 June 2009 (see Art 30 of the 2006 convention for rules concerning entry into force). For the wording of the new convention see Sch 11. Sch 7 (French Airline Profits Agreement) formerly read:
SCHEDULE 7 - French Airline Profits Agreement
AGREEMENT BETWEEN THE GOVERNMENT OF THE COMMONWEALTH OF AUSTRALIA AND THE GOVERNMENT OF THE FRENCH REPUBLIC FOR THE AVOIDANCE OF DOUBLE TAXATION OF INCOME DERIVED FROM INTERNATIONAL AIR TRANSPORT
ARTICLE 1
(1)
The taxes which are the subject of this Agreement are:
(a) in Australia: the Commonwealth incometax, including the additional tax upon the undistributed amount of the distributable income of a private company (hereinafter referred to as "Australian tax");
(b) in France: Personal income tax (impôt sur le revenue des personnes physiques); complementary income tax (taxe complémentaire); company income tax (impôt sur les bénéfices des sociétés et autres personnes morales); the withholding tax on income from movable capital (retenue á la source sur les revenus des capitaux mobiliers); and the identical or substantially similar taxes on income and profits imposed on behalf of the French Overseas Territories (hereinafter referred to as "French tax").
(2)
This Agreement shall also apply to any other taxes of a substantially similar character imposed by either the French Republic or the Commonwealth of Australia subsequently to the date of signature of this Agreement.
ARTICLE 2
In this Agreement:
(a) the term "Australia" means the whole of the Commonwealth of Australia and includes-
(i) the Territory of Norfolk Island;
(ii) the Territory of Christmas Island;
(iii) the Territory of Cocos (Keeling) Islands; and
(iv) the Territory of Ashmore and Cartier Islands;
(b) the term "France" means the European and Overseas Departments and the Overseas Territories of the French Republic;
(c) the term "person" includes an individual, a company and any other body of persons;
(d) the term "Australian enterprise" means a person who is a resident of Australia for the purposes of Australian tax and is not domiciled in France for the purposes of French tax;
(e) the term "French enterprise" means a person who is domiciled in France for the purposes of French tax and is not a resident of Australia for the purposes of Australian tax;
(f) the term "income from the operation of aircraft in international traffic" means income and profits from the carriage by air of passengers, cargo or mail between-
(i) Australia and France;
(ii) Australia and any other country;
(iii) France and any other country; or
(iv) countries other than Australia or France or places in any such country, and includes income and profits derived by a person engaged in such carriage from the sale of tickets on behalf of other persons for such carriage.ARTICLE 3
(1)
A French enterprise shall be exempt from Australian tax on-
(a) income from the operation of aircraft in international traffic; and
(b) income and profits from the carriage by air of passengers, cargo or mail between places in France.
(2)
An Australian enterprise shall be exempt from French tax on-
(a) income from the operation of aircraft in international traffic; and
(b) income and profits from the carriage by air of passengers, cargo or mail between places in Australia.
(3)
For the purposes of paragraph (1) of this Article income from the operation of aircraft in international traffic does not include income and profits arising from carriage by air of passengers, cargo or mail from a place in Australia to a place in the Territory of Papua or the Trust Territory of New Guinea.
ARTICLE 4
(1)
Each Contracting Party shall notify the other of the date on which legislative or other provision has been made for giving the Agreement the force of law in its territory in accordance with its constitutional processes. The Agreement will enter into force on the date on which the later of these two notifications is received by the other Contracting Party. The provisions of the Agreement shall have effect-
(a) as regards Australian tax, for the year of income beginning on the first day of July 1966 and subsequent years of income; and
(b) as regards French tax, for the income derived during the year 1967 or accounting period ending in the course of that year, and subsequent years.
(2)
This Agreement shall continue in effect indefinitely but either Contracting Party may, on or after the first day of January 1972 but on or before the thirtieth day of June in any calendar year, give to the other Contracting Party notice of termination and, in that event, this Agreement shall cease to be effective-
(a) as regards Australian tax, for the year of income beginning in the calendar year next following that in which the notice of termination is given and subsequent years of income; and
(b) as regards French tax, for the income derived during the year following the calendar year in which the notice of termination is given, or the accounting period beginning in the course of the calendar year following such notice, and subsequent years.
IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.
DONE in duplicate at Canberra on the twenty-seventh day of March, One thousand nine hundred and sixty-nine, in the English and French languages, both texts being equally authoritative.
WILLIAM McMAHON
For the Government of the Commonwealth of AustraliaANDRÉ FAVEREAU
For the Government of the French Republic
History
Sch 7 inserted by No 24 of 1969.
(Repealed by No 45 of 2011)
History
Sch 8 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Italian Airline Profits Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 8 formerly read:
SCHEDULE 8 - Italian Airline Profits Agreement
Section 3
AGREEMENT BETWEEN THE GOVERNMENT OF THE COMMONWEALTH OF AUSTRALIA AND THE GOVERNMENT OF ITALY FOR THE AVOIDANCE OF DOUBLE TAXATION OF INCOME DERIVED FROM INTERNATIONAL AIR TRANSPORT
ARTICLE 1
(1)
The existing taxes to which the Agreement applies are-
(a) in Australia:
the Commonwealth income tax, including the additional tax upon the undistributed amount of the distributable income of a private company, (hereinafter referred to as "Australian tax");
(b) in Italy:
(i) the tax on income from movable wealth (imposta sui redditi di ricchezza mobile);
(ii) the complementary tax (imposta complementare progressiva sul reddito);
(iii) the tax on companies insofar as the tax is charged on income and not on capital (imposta sulle societa', per la parte che grava sul reddito e non sul patrimonio); and
(iv) the taxes on income imposed on behalf of provinces, municipalities and Chambers of commerce (imposte provinciali, comunali e camerali sul reddito), (hereinafter referred to as "Italian tax").
(2)
This Agreement shall also apply to any indentical 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.
ARTICLE 2
(1)
In this Agreement, unless the context otherwise requires-
(a) the term "Australia" includes any Territory of or under the authority of the Commonwealth of Australia and any Territory governed by it under a Trusteeship Agreement;
(b) the term "Italy" means the Italian Republic;
(c) the terms "Contracting State" and "other Contracting State" mean Australia or Italy, as the context requires;
(d) the term "Australian enterprise" means an enterprise that has its place of effective management in Australia;
(e) the term "Italian enterprise" means an enterprise that has its place of effective management in Italy;
(f) the term "enterprise of a Contracting State" means an Australian enterprise or an Italian enterprise, as the context requires;
(g) the term "tax" means Australian tax or Italian tax, as the context requires;
(h) the term "operation of aircraft in international traffic"means the operation of aircraft for the carriage of persons, livestock, goods or mail between-
(i) Australia and Italy;
(ii) Australia and any other country;
(iii) Italy and any other country;and in respect of an enterprise engaged in such operations includes the sale of tickets for, and the provision of services connected with, such carriage, either for the enterprise itself or for any other enterprise engaged in such operations.
(iv) countries other than Australia or Italy or places in any such country,
(2)
In the application of the provisions of this Agreement in one of the Contracting States, any term used but not defined herein shall, unless the context otherwise requires, have the meaning which it has under the laws in force in that Contracting State relating to the taxes to which this Agreement applies.
ARTICLE 3
(1)
Profits derived by an enterprise of a Contracting State from the operation of aircraft in international traffic or arising from the carriage by air of persons, livestock, goods or mail between places in that Contracting State, shall be exempt from tax in the other Contracting State.
(2)
The exemption provided in paragraph 1 of this Article shall apply to a share of the profits from the operation of aircraft in international traffic derived by an enterprise of a Contracting State through participation in a pooled service, in a joint air transport operation or in an international operating agency.
ARTICLE 4
(1)
This Agreement shall be ratified and the instruments of ratification shall be exchanged at Rome as soon as possible.
(2)
This Agreement shall enter into force on the date of the exchange of the instruments of ratification and its provisions shall have effect-
(a) in Australia, for the year of income that commenced on the first day of July 1966 and subsequent years of income;
(b) in Italy, in respect of income assessable for any taxable period commencing on or after the first day of January 1966.
ARTICLE 5
This Agreement shall continue in effect indefinitely but either Contracting State may, on or before the thirtieth day of June in any calendar year after the year 1973, give notice of termination to the other Contracting State and in such event this Agreement shall cease to be effective-
(a) in Australia, for the year of income commencing on the first day of July in the calendar year next following that in which the notice of termination is given, and subsequent years of income; and
(b) in Italy, in respect of income assessable for any taxable period commencing on or after the first day of January in the calendar year next following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed the present Agreement.
DONE in duplicate at Canberra the thirteenth day of April, 1972 in the English and Italian languages, both texts being equally authoritative.
B.M. SNEDDEN
For the Government of the Commonwealth of AustraliaPAOLO CANALI
For the Government of Italy
Sch 8 inserted by No 11 of 1973.
(Repealed by No 45 of 2011)
History
Sch 9 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the German Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 9 formerly read:
SCHEDULE 9 - German Agreement
Section 3
THE COMMONWEALTH OF AUSTRALIA AND THE FEDERAL REPUBLIC OF GERMANY
ARTICLE 1
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2
(1)
The taxes to which this Agreement shall apply are-
(a) in Australia:
the Commonwealth income tax, including the additional tax upon the undistributed amount of the distributable income of a private company;
(b) in the Federal Republic of Germany:
the Einkommensteuer (income tax) including the Ergänzungsabgabe (surcharge) thereon;
the Körperschaftsteuer (corporation tax) including the Ergänzungsabgabe (surcharge) thereon;
the Vermögensteuer (capital tax); and
the Gewerbesteuer (trade tax).
(2)
This Agreement shall also apply to any identical or substantially similar taxes, on income or capital, which are subsequently imposed under the law of the Commonwealth of Australia or the law of the Federal Republic of Germany in addition to, or in place of, the existing taxes.
(3)
The provisions of this Agreement in respect of taxation of income or capital shall, subject to Article 22, likewise apply to the German trade tax, computed on a basis other than income or capital.
ARTICLE 3
(1)
In this Agreement, unless the context otherwise requires-
(a) the term "Australia", when used in a geographical sense, means the whole of the Commonwealth of Australia, and includes-
(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 Coral Sea Islands Territory; and
(vi) any area adjacent to the Commonwealth or to any of the said Territories in respect of which there is for the time being in force, consistently with international law, a law of the Commonwealth or of a State or Territory of the Commonwealth dealing with the exploitation of any of the natural resources of the sea-bed and sub-soil of the continental shelf;
(b) the term "Federal Republic of Germany", when used in a geographical sense, means the territory in which the Basic Law for the Federal Republic of Germany is in force, as well as any area adjacent to the territorial waters of the Federal Republic of Germany designated, in accordance with international law as related to the rights which the Federal Republic of Germany may exercise with respect to the sea-bed and sub-soil and their natural resources, as a domestic area for tax purposes;
(c) the terms "Contracting State" and "the other Contracting State" mean Australia or the Federal Republic of Germany, as the context requires;
(d) the term "person" means an individual, a company and any other entity subject to tax;
(e) the term "company" means any body corporate or any entity which is assimilated to a body corporate for tax purposes;
(f) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean an industrial or commercial enterprise carried on by a resident of Australia or an industrial or commercial enterprise carried on by a resident of the Federal Republic of Germany, as the context requires;
(g) the term "tax" means Australian tax or German tax, as the context requires;
(h) the term "Australian tax" means tax imposed under the law of the Commonwealth of Australia, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "German tax" means tax imposed under the law of the Federal Republic of Germany, being tax to which this Agreement applies by virtue of Article 2;
(j) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or his authorized representative, and in the case of the Federal Republic of Germany, the Federal Minister of Finance.
(2)
As regards the application of this Agreement by a Contracting State, any term not otherwise defined shall, unless the context otherwise requires, have the meaning which it has under the laws of that Contracting State relating to the taxes to which this Agreement applies.
ARTICLE 4
(1)
For the purposes of this Agreement, a person is a resident of a Contracting State if-
(a) where Australia is the Contracting State, the person is a resident of Australia for the purposes of Australian tax and is not-
(i) by reason of his place of residence, not subject to Australian tax; or
(ii) by that reason so subject only in relation to income from sources in Australia;
(b) where the Federal Republic of Germany is the Contracting State, the person is subject to unlimited tax liability in the Federal Republic of Germany.
(2)
Where by reason of the provisions of paragraph (1) an individual is a resident of both Contracting States, then his case shall be determined in accordance with the following rules:
(a) he shall be deemedto be a resident of the Contracting State in which he has a permanent home available to him;
(b) if he has a permanent home available to him in both Contracting States, or if he does not have a permanent home available to him in either of them, he shall be deemed to be a resident of the Contracting State in which he has an habitual abode, or where he has such habitual abode in both Contracting States, or if he does not have such habitual abode in either of them, he shall be deemed to be a resident of the Contracting State with which his personal and economic relations are closest.
(3)
Where by reason of the provisions of paragraph (1) a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident of the Contracting State in which its place of effective management is situated.
ARTICLE 5
(1)
For the purposes of this Agreement the term "permanent establishment" means a fixed place of business in which the business of the enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially-
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, quarry or other place of extraction of natural resources;
(g) land used for agricultural, pastoral or forestry purposes;
(h) a building site or construction, installation or assembly project which exists for more than six months.
(3)
An enterprise shall not be deemed to have a permanent establishment merely by reason of-
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(4)
A person acting in a Contracting State on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (5) applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State-
(a) if he has, and habitually exercises in that State, an authority to conclude contracts binding the enterprise, unless his activities are limited to the purchase of goods or merchandise for the enterprise;
(b) if in so acting goods or merchandise belonging to the enterprise are manufactured or processed by him in that State for the enterprise, provided that this provision shall apply only in relation to the goods or merchandise so manufactured or processed.
(5)
An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of his business as such a broker or agent.
(6)
The fact that a company which is a resident in a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
ARTICLE 6
Income from real property situated in a Contracting State, including royalties or similar payments in respect of the exploitation of mines, quarries or other natural resources so situated, may be taxed in that State.ARTICLE 7
(1)
The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
(2)
Where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment. In the determination of such profits there shall be allowed as deductions expenses which are incurred for the purposes of the permanent establishment, including executive and general administrative expenses so incurred, whether in the State in which the permanent establishment is situated or elsewhere.
(3)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(4)
For the purposes of this Article, except as provided in the Articles referred to in this paragraph, the profits of an enterprise do not include income or profits dealt with in Articles 6, 8, 10, 11, 12, 13, 15 and 16.
ARTICLE 8
(1)
A resident of a Contracting State shall be exempt from tax in the other Contracting State on profits from the operation of ships or aircraft.
(2)
Notwithstanding the provisions of paragraph (1), a resident of a Contracting State may be taxed in the other Contracting State on profits from operations of ships or aircraft confined solely to places in that other State.
(3)
The provisions of paragraphs (1) and (2) shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of a Contracting State through participation in a pool service, in a joint transport operating organisation or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mails, goods or merchandise shipped in a Contracting State for discharge at another place in that State or, in the case of Australia, at a place in the Territory of Papua or the Trust Territory of New Guinea are profits from operations confined solely to places in that State.
(5)
The amount which shall be charged to tax in a Contracting State as profits from the operation of ships or aircraft in respect of which a resident of the other Contracting State may be taxed in the first-mentioned State under paragraph (2) or (3) shall not exceed 5 per cent of the amount paid or payable (net of rebates) in respect of carriage in such operations.
(6)
Paragraph (5) shall not apply to profits derived from the operation of ships or aircraft by a resident of a Contracting State whose principal place of business is in the other Contracting State, nor shall it apply to profits derived from the operation of ships or aircraft by a resident of a Contracting State if those profits are derived otherwise than from the carriage of passengers, livestock, mails, goods or merchandise. In such cases, the provisions of Article 7 shall apply but there shall be excluded from the profits on which any such person is charged to Australian tax any amount of profits taxed in the Territory of Papua or the Trust Territory of New Guinea.
ARTICLE 9
Where-
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,and in either case conditions are operative between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
ARTICLE 10
(1)
Dividends paid by a company which is a resident of Australia for purposes of Australian tax to a resident of the Federal Republic of Germany may be taxed in Australia, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends.
(2)
Dividends paid by a company which is subject to unlimited tax liability in the Federal Republic of Germany to a resident of Australia may be taxed in the Federal Republic of Germany, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends.
(3)
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the taxation law of the Contracting State of which the company making the distribution is a resident, and shall include, in the case of paragraph (2), the income of a sleeping partner (stiller Gesellschafter) from his participation as such.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the recipient of the dividends has in the Contracting State of which the company paying the dividends is a resident a permanent establishment with which the holding by virtue of which the dividends are paid is effectively connected. In such a case, the provisions of Article 7 shall apply.
ARTICLE 11
(1)
Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in the first-mentioned State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(2)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form ofindebtedness as well as all other income assimilated to interest by the taxation law of the Contracting State in which the income arises.
(3)
The provisions of paragraph (1) shall not apply if the recipient of the interest has in the Contracting State in which the interest arises a permanent establishment with which the indebtedness from which the interest arises is effectively connected. In such a case, the provisions of Article 7 shall apply.
(4)
Interest shall be deemed to arise in a Contracting State when the payer is that Contracting State itself or a State or a Land of that Contracting State or a political subdivision or local authority of that Contracting State or a person who is a resident of that Contracting State for the purposes of its tax. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a State other than that of which he is a resident a permanent establishment in connection with which the indebtedness on which the interest is paid was incurred, and the interest is borne by the permanent establishment, then the interest shall be deemed to arise in the State in which the permanent establishment is situated.
(5)
Where, owing to a special relationship between the payer and the recipient or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the recipient in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 12
(1)
Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in the first-mentioned State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
(2)
The term "royalties" in this Article means payments, whether periodical or not, and however described and computed, to the extent to which they are paid as consideration for the use of, or the right to use, any copyright, patent, design or model, plan, secret formula or process, trade-mark, or other like property or right, or industrial, commercial or scientific equipment, or for the supply of scientific, technical, industrial or commercial knowledge or information, or for the supply of any assistance connected with the supply of such knowledge or information, and includes any payments to the extent to which they are paid as consideration for the use of, or the right to use, motion picture films, films or video tapes for use in connection with television or tapes for use in connection with radio broadcasting.
(3)
The provisions of paragraph (1) shall not apply if the recipient of the royalties has in the Contracting State in which the royalties arise a permanent establishment with which the asset giving rise to the royalties is effectively connected. In such a case, the provisions of Article 7 shall apply.
(4)
Royalties shall be deemed to arise in a Contracting State when the payer is that Contracting State itself or a State or a Land of that Contracting State or a political subdivision or local authority of that Contracting State or a person who is a resident of that Contracting State for the purposes of its tax. Where, however, the person paying the royalties, whether he is a resident of a Contracting State or not, has in a State other than that of which he is a resident a permanent establishment in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment, then the royalties shall be deemed to arise in the State in which the permanent establishment is situated.
(5)
Where, owing to a special relationship between the payer and the recipient or between both of them and some other person, the amount of the royalties paid, having regard to what they are paid for, exceeds the amount which might have been expected to have been agreed upon by the payer and the recipient in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13
Income derived by an individual who is a resident of a Contracting State in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to that fixed base.ARTICLE 14
(1)
Subject to the provisions of Articles 15, 17, 18 and 19, remuneration derived by an individual who is a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall, if-
(a) the period, or the aggregate of the periods, for which the recipient is present in the other State in the year of income or the assessment period, as the case may be, of the other State during which the employment is exercised does not exceed 183 days;
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State; and
(c) the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other State,be taxable only in the first-mentioned State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that State.
ARTICLE 15
Directors' fees and similar payments derived by a resident of a Contracting State in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 16
(1)
Notwithstanding the provisions of Articles 13 and 14, income derived by public entertainers (such as theatrical, motion picture, radio or television artists and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
(2)
Notwithstanding anything contained in this Agreement, where the services of a public entertainer mentioned in paragraph (1) are provided in a Contracting State by an enterprise of the other Contracting State, the profits derived by that enterprise from providing those services may be taxed in the first-mentioned State if the public entertainer performing the services controls, directly or indirectly, that enterprise.
ARTICLE 17
(1)
Remuneration (other than a pension or annuity) paid by the Commonwealth of Australia, a State of the Commonwealth or a political subdivision or local authority of the Commonwealth or of a State to any individual in respect of an employment shall be taxable only in Australia. If, however, the employment is exercised in the Federal Republic of Germany by an individual who is a German citizen or is subject to unlimited tax liability in the Federal Republic of Germany such remuneration shall be taxable only in the Federal Republic of Germany.
(2)
Remuneration (other than a pension or annuity) paid by the Federal Republic of Germany, a Land or a political subdivision or local authority thereof to any individual in respect of an employment shall be taxable only in the Federal Republic of Germany. If, however, the employment is exercised in Australia by an individual who is an Australian citizen or is ordinarily resident in Australia such remuneration shall be taxable only in Australia.
(3)
This Article shall not apply to remuneration in respect of an employment exercised in connection with any trade or business carried on by a Government, a political subdivision or an authority referred to in paragraphs (1) or (2).
ARTICLE 18
Pensions and annuities paid to a resident of a Contracting State shall be taxable only in that State.ARTICLE 19
(1)
Remuneration which a professor or teacher who is a resident of a Contracting State and who visits the other Contracting State for a period not exceeding two years for the purpose of carrying out advanced study or research or of teaching at a university, college, school or other educational institution receives for those activities shall not be taxed in that other State.
(2)
Payments which a student who is, or immediately before was, a resident of a Contracting State and who is temporarily present in the other Contracting State solely for the purpose of his education receives from sources outside that other State for the purposes of his maintenance or education shall not be taxed in that other State.
ARTICLE 20
Where a person, who by reason of the provisions of paragraph (1) of Article 4 is a resident of both Contracting States but by reason of the provisions of paragraphs (2) or (3) of Article 4 is deemed for the purposes of this Agreement to be a resident solely of one of the Contracting States, derives income-
(a) from sources in that Contracting State; or
(b) from sources outside both Contracting States,that income shall be taxable only in that Contracting State.
ARTICLE 21
(1)
Capital represented by real property may be taxed in the Contracting State in which the property is situated.
(2)
Capital represented by property, other than real property, forming part of the business property of a permanent establishment of an enterprise, or by property, other than real property, pertaining to a fixed base used for the performance of professional services, may be taxed in the Contracting State in which the permanent establishment or fixed base is situated.
(3)
Capital represented by ships and aircraft operated in international traffic by a resident of a Contracting State or by property, other than real property, pertaining to the operation of such ships and aircraft, shall be taxable only in that State.
ARTICLE 22
(1)
Subject to any provisions of the law of Australia from time to time in force regulating the allowance of a credit against Australian tax of tax paid in a country outside Australia, German tax paid, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in the Federal Republic of Germany (not including, in the case of a dividend, tax paid in respect of the profits out of which the dividend is paid) shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
German tax shall be determined in the case of a resident of the Federal Republic of Germany as follows:
(a) Unless the provisions of sub-paragraph (b) apply, there shall be excluded from the basis upon which German tax is imposed, any item of income from sources within Australia, and any item of capital falling under paragraphs (1) and (2) of Article 21 and situated within Australia, which, according to this Agreement, may be taxed in Australia. In the determination of its rate of tax applicable to any item of income or capital not so excluded, the Federal Republic of Germany will, however, take into account the items of income and capital so excluded. The first sentence of this sub-paragraph shall, in the case of income from dividends, apply only to such dividends as are paid to a company which is a resident of the Federal Republic of Germany by a company which is a resident of Australia of which at least 25 per cent of the voting shares or of the total shares issued are owned by the German company. There shall also be excluded from the basis upon which German tax is imposed any shareholding, the dividends on which if paid would be excluded from the basis upon which tax is imposed according to the immediately foregoing sentence.
(b) Subject to the provisions of German tax law regulating credit for foreign tax, there shall be allowed as a credit against German tax on income payable in respect of the following items of income the Australian tax paid in accordance with this Agreement on those items of income, namely-
(i) dividends to which sub-paragraph (a) does not apply;
(ii) profits from the operation of ships or aircraft which may be taxed in Australia according to Article 8 and do not fall under paragraph (6) of that Article;
(iii) interest to which paragraph (1) of Article 11 applies;
(iv) royalties to which paragraph (1) of Article 12 applies;
(v) remuneration to which Article 15 applies;
(vi) profits to which paragraph (2) of Article 16 applies;
(vii) any item of income not dealt with in the foregoing Articles of this Agreement.
ARTICLE 23
(1)
Where a resident of a Contracting State considers that the actions of one or both of the Contracting States result or will result for him in taxation not in accordance with this Agreement, he may, notwithstanding the remedies provided by the national laws of those States, present his case to the competent authority of the Contracting State of which he is a resident.
(2)
The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement.
(3)
The competent authorities of the Contracting States shall together endeavour to resolve any difficulties or doubts arising as to the interpretation or application of this Agreement.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs.
ARTICLE 24
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or for the prevention of fraud or for the administration of statutory provisions against avoidance of the taxes which are the subject of this Agreement. Any information so exchanged shall be treated as secret and shall not be disclosed to any persons or authorities (including a court) other than those concerned with the assessment or collection of the taxes which are the subject of this Agreement, or the determination of appeals or the prosecution of offences in relation thereto.
(2)
In no case shall the provisions of paragraph (1) be construed so as to impose on a Contracting State the obligation-
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 25
(1)
Nothing in this Agreement shall affect diplomatic or consular privileges under the general rules of international law or under the provisions of special international agreements.
(2)
Insofar as, due to such privileges granted to a person under the general rules of international law or under the provisions of special international agreements, income or capital is not subject to tax in the receiving State, the right to tax shall be reserved to the sending State.
ARTICLE 26
This Agreement shall also apply to Land Berlin, provided that the Government of the Federal Republic of Germany has not made a contrary declaration to the Government of the Commonwealth of Australia within three months from the date of entry into force of this Agreement.ARTICLE 27
(1)
This Agreement may be extended, either in its entirety or with modifications, to any Territory for whose international relations Australia is responsible, and which imposes taxes substantially similar in character to those which are the subject of this Agreement, and any such extension shall take effect from such date and subject to such modifications and conditions (including conditions as to termination) as may be specified and agreed between the Contracting States in Letters to be exchanged through diplomatic channels for this purpose.
(2)
The termination of this Agreement under Article 29 shall, unless otherwise expressly agreed by both Contracting States, terminate the application of this Agreement to any Territory to which it has been extended under this Article.
ARTICLE 28
(1)
This Agreement shall be ratified and the instruments of ratification shall be exchanged at Bonn as soon as possible.
(2)
This Agreement shall enter into force on the thirtieth day after the date of exchange of the instruments of ratification and shall have effect-
(a) in both Contracting States, as respects any withholding tax on dividends, interest and royalties derived on or after 1 July 1971;
(b) in Australia, as respects tax on income of any year of income beginning on or after 1 July 1971;
(c) in the Federal Republic of Germany, as respects taxes which are levied for the assessment period 1971 and for subsequent assessment periods.
ARTICLE 29
This Agreement shall continue in effect indefinitely but either of the Contracting States may, on or before the thirtieth day of June in any calendar year, give to the other Contracting State, through diplomatic channels, written notice of termination and, in that event, this Agreement shall cease to be effective-
(a) in both Contracting States, as respects any withholding tax on dividends, interest and royalties derived on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in Australia, as respects tax on income of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(c) in the Federal Republic of Germany, as respects taxes which are levied for the assessment period next following that in which the notice of termination is given, and for subsequent assessment periods.IN WITNESS WHEREOF the undersigned, being duly authorized thereto by their respective Governments, have signed this Agreement.
DONE at Melbourne this twenty-fourth day of November 1972, in four originals, two in the English language and two in the German language, all texts being equally authentic.
PROTOCOL
B. M. SNEDDEN
FOR THE COMMONWEALTH OF AUSTRALIAHEINZ VOIGT
FOR THE FEDERAL REPUBLIC OF GERMANY
(1)
With reference to Article 5, an enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if it carries on supervisory activities in that State for more than six months in connection with a building site, or a construction, installation or assembly project which is being undertaken in that State.
(2)
With reference to Article 6, income from real property shall be taken to include income from leases of land.
(3)
With reference to Articles 6 to 8 and 10 to 16, income derived by a resident of the Federal Republic of Germany which, under Articles 6 to 8 and 10 to 16 of the Agreement, may be taxed in Australia may be deemed, for the purposes of the Commonwealth income tax law, to be income from sources in Australia.
(4)
With reference to Article 7,
(a) insofar as it is customary in a Contracting State, in determining the profits to be attributed to a permanent establishment, to do so on the basis of an apportionment of the total profits of the enterprise to its various parts, that method may be adopted for the purpose of the application of Article 7 of the Agreement, provided that it shall be applied in such a way that the result accords with the principles stated in that Article.
(b) Article 7 of the Agreement shall not apply to profits of an enterprise from carrying on a business of any form of insurance, other than life insurance.
(5)
With reference to Articles 7 and 9, where the information availableto the competent authority of a Contracting State is inadequate to determine the profits of an enterprise on which tax may be imposed in that State in accordance with Article 7 or Article 9 of the Agreement, nothing in those Articles shall prevent the application to that enterprise of any law of that State making provision for determining the tax liability of an enterprise in special circumstances, provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles applicable under Articles 7 and 9.
(6)
With reference to Article 10, notwithstanding the provisions of paragraph (2) of Article 10 of the Agreement German tax on dividends to which that paragraph applies paid to a company which is a resident of Australia by a company which is a resident of the Federal Republic of Germany, at least 25 per cent of the capital of which is held directly or indirectly by the Australian company itself, or by it together with other persons controlling it or being under common control with it, may be charged at a rate not exceeding 25.75 per cent of the gross amount of the dividends if the rate of German corporation tax on distributed profits is lower than that on undistributed profits and the difference between those two rates is 20 percentage points or more.
(7)
With reference to Articles 10 to 12, the references in Articles 10 to 12 of the Agreement to dividends, interest or royalties paid to a resident of a Contracting State refer to dividends, interest or royalties to which a resident of the Federal Republic of Germany is beneficially entitled, and to dividends, interest or royalties to which a resident of Australia is entitled (bezugsberechtigt), being economically the owner (wirtschaftlicher Eigentümer) of the assets on which the dividends, interest or royalties are paid, as the case may be.
(8)
With reference to Articles 10 to 12 and 22, for the purposes of Articles 10 to 12 and of paragraph (1) and subparagraph (b) of paragraph (2) of Article 22 of the Agreement the term "tax" does not include any amount which represents a penalty or interest relating to the taxes to which the Agreement applies, imposed under the law in force in Australia or in the Federal Republic of Germany.
(9)
With reference to Article 11, interest derived by the Government of a Contracting State, or by any other body exercising governmental functions in, or in a part of, a Contracting State, or by a bank performing central banking functions in a Contracting State, shall be exempt from tax in the other Contracting State.
(10)
With reference to Article 22,
(a) where income derived by a resident of a Contracting State may, under the provisions of Articles 6 to 8 and 10 to 16 of the Agreement, be taxed, even at a limited rate, in the other Contracting State, such income shall for the purposes of Article 22 of the Agreement be considered to be income from sources in that other State;
(b) for the purposes of paragraph (1) of Article 22 of the Agreement the term "German tax" shall include German trade tax only where it is levied on a basis other than capital or pay-roll;
(c) for the purposes of sub-paragraph (a) of paragraph (2) of Article 22 of the Agreement, the term "Australia" does not, in relation to an item of income derived by a resident of the Federal Republic of Germany from sources in a Territory or area referred to in sub-paragraph (a)(i) to (vi) of paragraph (1) of Article 3, include that area if Australian tax does not apply in relation to such income;
(d) sub-paragraph (a) of paragraph (2) of Article 22 of the Agreement shall apply to the profits of a permanent establishment or to dividends paid by a company only if the profits of the permanent establishment or the income of the company are derived exclusively or almost exclusively-
(i) from producing, manufacturing or processing goods or from similar activities, the exploration for or exploitation or treatment of minerals, quarrying, primary production, building, construction or assembly, transport, storage or communication, giving advice or rendering services, leasing or renting, banking, hire-purchase or money-lending or insurance, within Australia, selling goods or merchandise within or from Australia, or such other activities as may be agreed by the Contracting States in Letters to be exchanged for this purpose; orIf these conditions are not met, sub-paragraph (b) of paragraph (2) of Article 22 of the Agreement shall extend to and shall apply both to the income and capital concerned;
(ii) from dividends paid by one or more companies, being residents of Australia, of which at least 25 per cent of the voting shares or of the total shares issued are owned by the first-mentioned company, which themselves derive their income exclusively or almost exclusively from the activities referred to in (i).
(e) where, as long as German trade tax is levied on income, Australian tax paid in accordance with the Agreement on dividends, interest or royalties derived from Australia exceeds the corresponding German income or corporation tax against which credit is to be given by virtue of sub-paragraph (b) of paragraph (2) of Article 22 of the Agreement, there shall be deducted from such income, when computing the basis of the trade tax, such part of that income as corresponds to the ratio between the excess amount of Australian tax and the total amount of Australian tax, paid in accordance with the Agreement.
(11)
General
(a) in the event that Australia should cease to allow a company which is a resident of Australia a rebate in its assessment at the average rate of tax payable by the company in respect of dividends derived from sources in the Federal Republic of Germany and included in the taxable income of the company, the Commonwealth of Australia will immediately advise the Federal Republic of Germany of the change and enter into negotiations with the Federal Republic of Germany in order to establish new provisions concerning the credit to be allowed by Australia against its tax on the dividends;
(b) in the event that the Federal Republic of Germany, in relation to dividends received by one company from another company, should reduce in its corporation tax law or in an agreement for the avoidance of double taxation with another country the percentage shareholding entitling the receiving company to relief from German corporation tax, the Federal Republic of Germany will immediately advise the Commonwealth of Australia of the reduction and enter into negotiations with the Commonwealth in order to introduce such lower percentage test into the Agreement;
(c) unless the context of the Agreement and of this Protocol otherwise requires, words in the singular include the plural and words in the plural include the singular.DONE at Melbourne on the twenty-fourth day of November 1972, in four originals, two in the English language and two in the German language, all texts being equally authentic.
B. M. SNEDDEN
FOR THE COMMONWEALTH OF AUSTRALIAHEINZ VOIGT
FOR THE FEDERAL REPUBLIC OF GERMANY
Sch 9 inserted by No 129 of 1974.
(Repealed by No 45 of 2011)
History
Sch 10 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Netherlands Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 10 formerly read:
SCHEDULE 10 - Netherlands Agreement
Section 3
AGREEMENT BETWEEN AUSTRALIA AND THE KINGDOM OF THE NETHERLANDS FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOMEas amended by Sch 10A - the second Netherlands protocol
CHAPTER I SCOPE OF THE AGREEMENT
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the States. ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Agreement shall apply are-
(a) in Australia:
the Australian income tax, including the additional tax upon the undistributed amount of the distributable income of a private company;
(b) in the Netherlands:
the Inkomstenbelasting (income tax);
the Loonbelasting (wages tax);
the Vennootschapsbelasting (corporation tax);
the Dividendbelasting (dividend tax).
(2)
This Agreement shall also apply to any identical or substantially similar taxes which are imposed by one of the States after the date of signature of this Agreement in addition to, or in place of, the existing taxes. At the end of each calendar year, the competent authority of each State shall notify the competent authority of the other State of any substantial changes which have been made in the taxation laws of his State to which this Agreement applies.
CHAPTER II DEFINITIONS
ARTICLE 3 General Definitions
(1)
In this Agreement, unless the context otherwise requires-
(a) the term "Australia" means the Commonwealth of Australia and, when used in a geographical sense, includes-
(i) the Territory of Norfolk Island;
(ii) the Territory of Christmas Island;
(iii) the Territory or Cocos (Keeling) Islands;
(iv) the Territory of Ashmore and Cartier Islands;
(v) the Coral Sea Islands Territory; and
(vi) any area adjacent to the territorial limits of Australia and the said Territories in respect of which there is for the time being in force, consistently with international law, a law of Australia or of a State or part of Australia or of a Territory aforesaid dealing with the exploitation of any of the natural resources of the sea-bed and sub-soil of the continental shelf;
(b) the term "the Netherlands" means that part of the Kingdom of the Netherlands that is situated in Europe and the part of the seabed and its sub-soil under the North Sea over which the Kingdom of the Netherlands has sovereign rights in accordance with international law;
(c) the terms "State", "one of the States" and "other State" mean Australia or the Netherlands, as the context requires;
(d) the term "person" means an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is assimilated to a body corporate for tax purposes;
(f) the term "tax" means Australian tax or Netherlands tax, as the context requires;
(g) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(h) the term "Netherlands tax" means tax imposed by the Netherlands, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or his authorised representative, and in the case of the Netherlands, the Minister of Finance or his authorised representative;
(j) the terms "enterprise of one of the States" and "enterprise of the other State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of the Netherlands, as the context requires;
(k) words in the singular include the plural and words in the plural include the singular.
(2)
In this Agreement, the terms "Australian tax" and "Netherlands tax" do not include any penalty or interest imposed under the law of either State relating to the taxes to which this Agreement applies by virtue of Article 2.
(3)
As regards the application of this Agreement by either of the States, any term not otherwise defined shall, unless the context otherwise requires, have the meaning which it has under the laws of that State relating to the taxes to which this Agreement applies.
ARTICLE 4 Residence
(1)
For the purposes of this Agreement, a person is a resident of one of the States-
(a) in the case of Australia, subject to paragraph (2), if the person is a resident of Australia for the purposes of Australian tax; and
(b) in the case of the Netherlands, if the person is a resident of the Netherlands for the purposes of Netherlands tax but not if he is liable to tax in the Netherlands in respect only of income from sources therein.
(2)
In relation to income from sources in the Netherlands, a person who is subject to Australian tax on income which is from sources in Australia shall not be treated as a resident of Australia unless the income from sources in the Netherlands is subject to Australian tax or, if that income is exempt from Australian tax, it is so exempt solely because it is subject to Netherlands tax.
(3)
Where by reason of the provisions of paragraph (1) an individual is a resident of both States, then his status shall be determined in accordance with the following rules:
(a) he shall be deemed to be a resident solely of the State in which he has a permanent home available to him;
(b) if he has a permanent home available to him in both States, or if he does not have a permanent home available to him in either of them, he shall be deemed to be a resident solely of the State with which his personal and economic relations are the closer.
(4)
Where by reason of the provisions of paragraph (1) a person other than an individual is a resident of both States, then it shall be deemed to be a resident solely of the State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Agreement the term "permanent establishment" means a fixed place of business in which the business of the enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially-
(a) a place of management;
(b) a branch;
(c) anoffice;
(d) a factory;
(e) a workshop;
(f) a mine, quarry or other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property;
(h) a building site or construction, installation or assembly project which exists for more than twelve months.
(3)
An enterprise shall not be deemed to have a permanent establishment merely by reason of-
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(4)
An enterprise shall be deemed to have a permanent establishment in one of the States and to carry on business through that permanent establishment if-
(a) it carries on supervisory activities in that State for more than twelve months in connection with a building site, or a construction, installation or assembly project which is being undertaken in that State; or
(b) substantial equipment is being used in that State for more than twelve months by, for or under contract with the enterprise in exploration for, or the exploitation of, natural resources, or in activities connected with such exploration or exploitation.
(5)
A person acting in one of the States on behalf of an enterprise of the other State - other than an agent of an independent status to whom paragraph (6) applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if-
(a) he has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless his activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting, he manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise, provided that this provision shall apply only in relation to the goods or merchandise so manufactured or processed.
(6)
An enterprise of one of the States shall not be deemed to have a permanent establishment in the other State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of his business as such a broker or agent.
(7)
The fact that a company which is a resident of one of the States controls or is controlled by a company which is a resident of the other State, or which carries on business in that other State (whether through a permanent establishment or otherwise) shall not of itself make either company a permanent establishment of the other.
(8)
The principles set forth in paragraphs (1) to (7) inclusive shall be applied in determining for the purposes of this Agreement whether there is a permanent establishment outside both States, and whether an enterprise, not being an enterprise of one of the States, has a permanent establishment in one of the States.
CHAPTER III TAXATION OF INCOME
ARTICLE 6 Income from Real Property
(1)
Income from real property, including royalties and other payments in respect of the operation of mines or quarries or of the exploitation of any natural resource, may be taxed in the State in which the real property, mines, quarries, or natural resources are situated.
(2)
Income from a lease of land and income from any other direct interest in or over land, whether or not improved, shall be regarded as income from real property. However, income from ships, boats or aircraft shall not be regarded as income from real property.
(3)
The provisions of paragraphs (1) and (2) shall also apply to the income from real property of an enterprise and to income from real property used for the performance of professional services.HistoryArt 6(2) amended by Sch 10A (the second Netherlands protocol).
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of one of the States shall be taxable only in that State unless the enterprise carries on business in the other State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State, but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph (3), where an enterprise of one of the States carries on business in the other State through a permanent establishment situated therein, there shall in each State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
For the purposes of this Article, except as provided in the Articles referred to in this paragraph, the profits of an enterprise do not include items of income dealt with in Articles 6, 8, 10, 11, 12, 13, 14, 16 and 17.
ARTICLE 8 Shipping and Air Transport
(1)
Profits from the operation of ships or aircraft derived by a resident of one of the States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1), such profits may be taxed in the other State where they are profits from operations of ships or aircraft confined solely to places in that other State.
(3)
The provisions of paragraphs (1) and (2) shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of a State through participation in a pool service, in a joint transport operating organisation or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage of passengers, livestock, mail, goods or merchandise shipped in a State for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
(5)
The amount which shall be charged to tax in one of the States as profits from the operation of ships or aircraft in respect of which a resident of the other State may be taxed in the first-mentioned State under paragraph (2) or (3) shall not exceed 5 per cent of the amount paid or payable (net of rebates) in respect of carriage in such operations.
(6)
Paragraph (5) shall not apply to profits derived from the operation of ships or aircraft by a resident of one of the States whose principal place of business is in the other State, nor shall it apply to profits derived from the operation of ships or aircraft by a resident of a State if those profits are derived otherwise than from the carriage of passengers, livestock, mail, goods or merchandise.
ARTICLE 9 Associated Enterprises
(1)
Where-
(a) an enterprise of one of the States participates directly or indirectly in the management, control or capital of an enterprise of the other State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the States and an enterprise of the other State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
Where profits on which an enterprise of one of the States has been charged to tax in that State are also included, by virtue of paragraph (1), in the profits of an enterprise of the other State and taxed accordingly, and the profits so included are profits which might have been expected to have accrued to the enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the first-mentioned State. In determining such an adjustment due regard shall be had to the other provisions of this Agreement in relation to the nature of the income, and for this purpose the competent authorities of the States shall if necessary consult each other.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the States for the purposes of its tax, being dividends to which a resident of the other State is beneficially entitled, may be taxed in that other State.
(2)
Such dividends may be taxed in the State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends. The provisions of this paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.
(3)
The term "dividends" in this Article means-
(a) in the case of Australia, income from shares and other income assimilated to income from shares by the taxation law of Australia; and
(b) in the case of the Netherlands, income which is subject to dividend tax.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the dividends, being a resident of one of the States, carries on business through a permanent establishment situated in the other State, being the State of which the company paying the dividends is a resident, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment. In such a case, the provisions of Article 7 shall apply.
(5)
Dividends paid by a company which is a resident of one of the States, being dividends to which a person who is not a resident of the other State is beneficially entitled, shall be exempt from tax in that other State except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment situated in that other State. Provided that this paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of the Netherlands for the purposes of Netherlands tax.
ARTICLE 11 Interest
(1)
Interest arising in one of the States, being interest to which a resident of the other State is beneficially entitled, may be taxed in that other State.
(2)
Such interest may be taxed in the State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
The term "interest" in this Article includes interest from Government securities, or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to interest or to income from money lent by the taxation law of the State in which the income arises. The term does not include income to which Article 10 applies.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the interest, being a resident of one of the States, carries on business through a permanent establishment situated in the other State, being the State in which the interest arises, and the indebtedness giving rise to the interest is effectively connected with that permanent establishment. In such a case, the provisions of Article 7 shall apply.
(5)
Interest shall be deemed to arise in a State when the payer is that State itself or a political sub-division of that State or a local authority of that State or a person who is a resident of that State. Where, however-
(a) the person paying the interest is a resident of one of the States and has in the other State or outside both States a permanent establishment in connection with which the indebtedness on which the interest is paid was incurred, and the interest is borne by the permanent establishment, then the interest shall be deemed to arise where the permanent establishment is situated;
(b) the person paying the interest is not a resident of either of the States but has in one of the States a permanent establishment in connection with which the indebtedness on which the interest is paid was incurred, and the interest is borne by the permanent establishment, then the interest shall be deemed to arise where the permanent establishment is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law of each of the States, but subject to the other provisions of this Agreement.HistoryArt 11(3) substituted by Sch 10A (the second Netherlands protocol).
ARTICLE 12 Royalties
(1)
Royalties arising in one of the States, being royalties to which a resident of the other State is beneficially entitled, may be taxed in that other State.
(2)
Such royalties may be taxed in the State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
(3)
The term "royalties" in this Article means payments, whether periodical or not, and however described or computed, to the extent to which they are paid as consideration for the use of, or the right to use, any copyright, patent, design or model, plan, secret formula or process, trade-mark, or other like property or right, or industrial, commercial or scientific equipment, or for the supply of scientific, technical, industrial or commercial knowledge or information, or for the supply of any assistance of an ancillary and subsidiary nature furnished as a means of enabling the application or enjoyment of such knowledge or information or any other property or right to which this Article applies, and includes any payments to the extent to which they are paid as consideration for the use of, or the right to use, motion picture films, films or video tapes for use in connection with television or tapes for use in connection with radio broadcasting.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the royalties, being a resident of one of the States, carries on business through a permanent establishment situated in the other State, being the State in which the royalties arise, and the asset giving rise to the royalties is effectively connected with that permanent establishment. In such a case, the provisions of Article 7 shall apply.
(5)
Royalties shall be deemed to arise in a State when the payer is that State itself or a political sub-division of that State or a local authority of that State or a person who is a resident of that State. Where, however-
(a) the person paying the royalties is a resident of one of the States and has in the other State or outside both States a permanent establishment in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment, then the royalties shall be deemed to arise where the permanent establishment is situated;
(b) the person paying the royalties is not a resident of either of the States but has in one of the States a permanent establishment in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment, then the royalties shall be deemed to arise where the permanent establishment is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties or between both of them and some other person, the amount of the royalties paid, having regard to what they are paid for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid shall remain taxable according to the law of each of the States, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of Property
(1)
Income from the alienation of real property may be taxed in the State in which that property is situated.
(2)
For the purposes of this Article-
(a) the term "real property" shall include-
(i) a lease of land or any other direct interest in or over land;
(ii) rights to exploit, or to explore for, natural resources; and
(iii) shares or comparable interests in a company, the assets of which consist wholly or principally of direct interests in or over land in one of the States or of rights to exploit, or to explore for, natural resources in one of the States.
(b) real property shall be deemed to be situated-
(i) where it consists of direct interests in or over land - in the State in which the land is situated;
(ii) where it consists of rights to exploit, or to explore for, natural resources - in the State in which the natural resources are situated or the exploration may take place; and
(iii) where it consists of shares or comparable interests in a company, the assets of which consist wholly or principally of direct interests in or over land in one of the States or of rights to exploit, or to explore for, natural resources in one of the States - in the State in which the assets or the principal assets of the company are situated.
(3)
Gains from the alienation of shares or "jouissance" rights in a company the capital of which is wholly or partly divided into shares and which is a resident of the Netherlands for the purposes of Netherlands tax, derived by an individual who is a resident of Australia, may be taxed in the Netherlands.
ARTICLE 14 Independent Personal Services
Income derived by an individual who is a resident of one of the States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless he has a fixed base regularly available to him in the other State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other State, but only so much of it as is attributable to that fixed base. ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 18, 19 and 20, salaries, wages and other similar remuneration derived by a resident of one of the States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by a resident of one of the States in respect of an employment exercised in the other State shall be taxable only in the first-mentioned State if-
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the year of income or the fiscal year, as the case may be, of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining the taxable profits of a permanent establishment or a fixed base which the employer has in that other State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration derived by a resident of one of the States in respect of an employment exercised aboard a ship or aircraft in international traffic shall be taxable only in that State.
ARTICLE 16 Directors' Remuneration
(1)
Where a resident of the Netherlands is a "director" of a company, which is a resident of Australia, and derives from that company fees and other remuneration in respect of his services to the company, such fees and other remuneration may be taxed in Australia.
(2)
Where a resident of Australia is a "bestuurder" or a "commissaris" of a company, which is a resident of the Netherlands, and derives from that company fees and other remuneration in respect of his services to the company, such fees and other remuneration may be taxed in the Netherlands.
(3)
Where the remuneration mentioned in paragraph (1) or (2) is derived by a person who exercises activities of a regular and substantial character in a permanent establishment situated in the State other than the State of which the company is a resident and the remuneration is deductible in determining the taxable profits of that permanent establishment then, notwithstanding the provisions of paragraph (1) or (2) of this Article, the remuneration, to the extent to which it is so deductible, shall be taxable only in the State in which the permanent establishment is situated.
ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes, and musicians and athletes) from their personal activities as such may be taxed in the State in which these activities are exercised.
(2)
Notwithstanding anything contained in Articles 5 and 7, where the services of an entertainer mentioned in paragraph (1) are provided in one of the States by an enterprise of the other State, the profits derived by that enterprise from providing those services may be taxed in the first-mentioned State if the entertainer performing the services or a relative of such person, controls, directly or indirectly, that enterprise.
(3)
The term "relative" in this Article means a brother, sister, spouse, ancestor or descendant.
ARTICLE 18 Pensions and Annuities
(1)
Pensions, including pensions provided under the provisions of a public social security system, but not including pensions to which Article 19 applies, paid to a resident of one of the States, and annuities so paid, shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
ARTICLE 19 Government Service
(1)
Remuneration (including a pension) paid to any individual in respect of services rendered in the discharge of governmental functions to one of the States or to a political sub-division of one of the States or to a local authority of one of the States may be taxed in that State. However, any such remuneration, not being a pension, shall be taxable only in the other State if the services are rendered in that other State and the recipient is a resident of that other State who-
(a) is a citizen or national of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
(2)
This Article shall not apply to remuneration (including a pension) in respect of services rendered in connection with any trade or business carried on by one of the States or apolitical sub-division of one of the States or a local authority of one of the States. In such a case, the provisions of Articles 15, 16 and 18 shall apply.
ARTICLE 20 Professors and Teachers
(1)
Remuneration which a professor or teacher who is a resident of one of the States and who visits the other State for a period not exceeding two years for the purpose of teaching or carrying out advanced study or research at a university, college, school or other educational institution, receives for those activities shall be taxable only in the first-mentioned State.
(2)
This Article shall not apply to remuneration which he receives for conducting research if the research is undertaken primarily for the private benefit of a specific person or persons.
ARTICLE 21 Students
Payments which a student who is, or was immediately before visiting one of the States, a resident of the other State and who is temporarily present in the first-mentioned State solely for the purpose of his education receives from sources outside that first-mentioned State for the purpose of his maintenance or education shall be exempt from tax in that first-mentioned State. ARTICLE 22 Income of Dual Resident
Where a person, who by reason of the provisions of paragraph (1) of Article 4 is a resident of both States but by reason of the provisions of paragraph (3) or (4) of that Article is deemed for the purposes of this Agreement to be a resident solely of one of the States, derives income from sources in that State or from sources outside both States, that income shall be taxable only in that State.CHAPTER IV METHODS OF ELIMINATION OF DOUBLE TAXATION
ARTICLE 23
(1)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Netherlands tax paid, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in the Netherlands (not including, in the case of a dividend, tax paid in respect of the profits out of which the dividend is paid) shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
The Netherlands, when imposing tax on its residents, may include in the basis upon which such taxes are imposed the items of income which according to the provisions of this Agreement may be taxed in Australia.
(3)
Without prejudice to the application of the provisions concerning the compensation of losses in the unilateral regulations for the avoidance of double taxation the Netherlands shall allow a deduction from the amount of tax computed in conformity with paragraph (2) of this Article equal to such part of that tax which bears the same proportion to the aforesaid tax, as the part of the income which is included in the basis mentioned in paragraph (2) of this Article and may be taxed in Australia according to Articles 6 and 7, paragraphs (2) and (3) of Article 8, paragraph (4) of Article 10, paragraph (4) of Article 11, paragraph (4) of Article 12, paragraph (1) of Article 13, Article 14, paragraph (1) of Article 15, paragraph (1) of Article 16 and Article 19 of this Agreement bears to the total income which forms the basis mentioned in paragraph (2) of this Article.Further, the Netherlands shall allow a deduction from the Netherlands tax so computed for such items of income, as may be taxed in Australia according to paragraph (2) of Article 10, paragraph (2) of Article 11, paragraph (2) of Article 12 and Article 17, and are included in the basis mentioned in paragraph (2) of this Article. The amount of this deduction shall be the lesser of the following amounts:
(a) the amount equal to the Australian tax;
(b) the amount of the Netherlands tax which bears the same proportion to the amount of tax computed in conformity with paragraph (2) of this Article, as the amount of the said items of income bears to the amount of income which forms the basis mentioned in paragraph (2) of this Article.
CHAPTER V SPECIAL PROVISIONS
ARTICLE 24 Mutual Agreement Procedure
(1)
Where a resident of a State considers that the actions of the competent authority of one or both of the States result or will result for him in taxation not in accordance with this Agreement, he may, notwithstanding the remedies provided by the national laws of those States, present his case to the competent authority of the State of which he is a resident. The case must be presented within three years from the first notification of the action.
(2)
The competent authority shall endeavour, if the taxpayer's claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other State, with a view to the avoidance of taxation not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the national laws of the States.
(3)
The competent authorities of the States shall jointly endeavour to resolve any difficulties or doubts arising as to the interpretation or application of this Agreement.
(4)
The competent authorities of the States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 25 Exchange of Information
(1)
The competent authorities of the States shall exchange such information as is necessary for the carrying out of this Agreement or of the domestic laws of the States concerning the taxes to which this Agreement applies insofar as the taxation thereunder is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
(2)
In no case shall the provisions of paragraph (1) be construed so as to impose on a State the obligation-
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other State;
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 26 Diplomatic and Consular Officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special agreements. ARTICLE 27 Regulations
The competent authority of the Netherlands may prescribe regulations necessary to carry out in the Netherlands the provisions of this Agreement. ARTICLE 28 Territorial Extension
(1)
This Agreement may be extended, either in its entirety or with any necessary modifications, to the part of the Kingdom of the Netherlands which is not situated in Europe and which imposes taxes substantially similar in character to those to which this Agreement applies. Any such extension shall take effect from such date and subject to such modifications and conditions, including conditions as to termination, as may be specified and agreed in notes to be exchanged through the diplomatic channel.
(2)
Unless otherwise agreed, the termination of this Agreement shall not also terminate the application of the Agreement to the part of the Kingdom of the Netherlands to which it has been extended under this Article.
CHAPTER VI FINAL PROVISIONS
ARTICLE 29 Entry into Force
This Agreement shall come into force on the date on which the Government of Australia and the Government of the Kingdom of the Netherlands exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in the Netherlands, as the case may be, and thereupon this Agreement shall have effect-
(a) in both States, in respect of withholding tax on dividends and interest, on dividends and interest derived on or after 1 July 1975;
(b) in Australia, in respect of tax on income of any year of income beginning on or after 1 July 1975;
(c) in the Netherlands, in respect of taxes, other than the dividend tax, for taxable years and periods beginning on or after 1 January 1975. ARTICLE 30 Termination
This Agreement shall continue in effect indefinitely, but the Government of Australia or the Government of the Kingdom of the Netherlands may, on or before 30 June in any calendar year after the year 1979, give to the other Government through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective-
(a) in both States, in respect of withholding tax on dividends, interest and royalties, on dividends, interest and royalties derived on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in Australia, in respect of tax on income of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(c) in the Netherlands, in respect of taxes, other than withholding taxes referred to in subparagraph (a), for taxable years and periods beginning after the end of the calendar year in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.
DONE in duplicate at Canberra this seventeenth day of March, one thousand nine hundred and seventy-six, in the English and Netherlands languages, both texts being equally authentic.
PROTOCOL
PHILLIP LYNCH
FOR THE GOVERNMENT OF AUSTRALIAR.C. PEKELHARING
FOR THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS
(1)
With reference to Articles 6 to 8 and 10 to 17, income derived by a resident of the Netherlands which under those Articles may be taxed in Australia, shall for the purposes of the income tax law of Australia be deemed to be income from sources in Australia.
(2)
With reference to Articles 7 and 9, where the information available to the competent authority of a State is inadequate to determine the profits of an enterprise on which tax may be imposed in that State in accordance with Article 7 or Article 9, nothing in those Articles shall affect the application of any law of that State relating to the determination of the tax liability of a person provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of those Articles.
(3)
With reference to Articles 7 and 23, profits of an enterprise of one of the States from carrying on a business of any form of insurance other than life insurance may be taxed in the other State in accordance with the law of that other State relating specifically to the taxation of any person who carries on such business, and Article 23 shall apply for the elimination of double taxation as if the profits so taxed were attributable to a permanent establishment of the enterprise in the State imposing the tax.
(4)
With reference to Articles 10, 11 and 12, applications for the restitution of tax levied by the Netherlands contrary to the provisions of those Articles must be lodged with the competent authority of the Netherlands within a period of three years after the expiration of the calendar year in which the tax has been levied.
(5)
With reference to Article 23,
(a) where income derived by a resident of Australia may, under the provisions of Articles 6 to 8 and 10 to 17, be taxed in the Netherlands such income shall, for the purposes of paragraph (1) of Article 23 and of the provisions of the income tax law of Australia dealing with the avoidance of double taxation, be deemed to be income from sources in the Netherlands;
(b) in so far as the Netherlands income tax or company tax is concerned, the basis mentioned in paragraph (2) of Article 23 is the "onzuivere inkomen" or "winst" in terms of the Netherlands income tax law or company tax law, respectively.
(6)
General.
(a) Where one of the States is entitled to tax the profits of an enterprise, that State may treat as profits of the enterprise, profits from the alienation of capital assets of the enterprise, not being profits that consist of income to which paragraph (1) of Article 13 applies.
(b) If, in an Agreement for the avoidance of double taxation that is subsequently made between Australia and a third State being a State that at the date of signature of this Protocol is a member of the Organisation for Economic Co-operation and Development, Australia shall agree 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 (2) of Article 10; 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 (2) of Article 11; orthe Government of Australia shall immediately inform the Government of the Kingdom of the Netherlands in writing through the diplomatic channel and shall enter into negotiations with the Government of the Kingdom of the Netherlands to review the provisions specified in subparagraphs (i), (ii) and (iii) above in order to provide the same treatment for the Netherlands as that provided for the third State.
(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 (2) of Article 12,DONE in duplicate at Canberra this seventeenth day of March, one thousand nine hundred and seventy-six, in the English and Netherlands languages, both texts being equally authentic.
Phillip Lynch
FOR THE GOVERNMENT OF AUSTRALIAR.C. Pekelharing
FOR THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS
Sch 10 inserted by No 52 of 1976.
(Repealed by No 45 of 2011)
History
Sch 10A repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Second Protocol to Netherlands Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 10A formerly read:
SCHEDULE 10A - Second Protocol to Netherlands Agreement
Section 3
SECOND PROTOCOL AMENDING THE AGREEMENT BETWEEN AUSTRALIA AND THE KINGDOM OF THE NETHERLANDS FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME WITH PROTOCOL
ARTICLE 1
Article 6 of the Agreement shall be amended by deleting the second sentence of paragraph (2).ARTICLE 2
Article 11 of the Agreement shall be amended by omitting paragraph (3) and substituting the following paragraph:"(3) The term 'interest' in this Article includes interest from Government securities, or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to interest or to income from money lent by the taxation law of the State in which the income arises. The term does not include income to which Article 10 applies."
ARTICLE 3
(1)
This Protocol, which shall form an integral part of the Agreement, shall enter into force on the first day of the second month after the date on which the Contracting States exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Protocol the force of law in Australia and in the Kingdom of the Netherlands respectively, and thereupon this Protocol shall have effect-
(a) in relation to income from debt claims of every kind, excluding bonds or debentures, secured by mortgage of real property or of any other direct interest in or over land, in pursuance of a contractual obligation entered into before the date of signature of this Protocol-
(i) in Australia, in respect of tax on income of any year of income beginning on or after the date of commencement of the eighteenth month following that in which signature of the Protocol occurs;
(ii) in the Netherlands, in respect of taxes for taxable years and periods beginning on or after the date of commencement of the eighteenth month following that in which signature of the Protocol occurs;
(b) in any other case, including those referred to in paragraph (2)-
(i) in Australia, in respect of tax on income of any year of income beginning on or after 1 July 1986;
(ii) in the Netherlands, in respect of taxes for taxable years and periods beginning on or after 1 January 1986.
(2)
Subparagraph (1)(a) does not apply in relation to-
(a) income which is derived before the commencement of the first year of income or the first taxable year or period, as the case may be, determined in accordance with that subparagraph, to the extent to which that income is attributable to that or any subsequent year or period; or
(b) income derived pursuant to a contractual obligation where the terms of that obligation are varied, after the date of signature of this Protocol, so as to extend or have the effect of extending the date on which repayment of the relevant debt is due.
IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Protocol.
DONE in duplicate at Canberra this thirtieth day of June, One thousand nine hundred and eighty-six, in the English and Netherlands languages, both texts being equally authentic.
PAUL KEATING
FOR AUSTRALIAC. H. A. PLUG
FOR THE KINGDOM OF THE NETHERLANDS
Sch 10A inserted by No 112 of 1986. The Second Protocol to the Netherlands Agreement came into force on 1 May 1987.
(Repealed by No 45 of 2011)
History
Sch 11 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the 2006 French Convention from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 11 formerly read:
SCHEDULE 11 - 2006 French Convention
Note: see section 3
CONVENTION BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE FRENCH REPUBLIC FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAXES ON INCOME AND THE PREVENTION OF FISCAL EVASION
Article 1 PERSONS COVERED
This Convention shall apply to persons who are residents of one or both of the Contracting States.Article 2 TAXES COVERED
1.
The existing taxes to which this Convention shall apply are:
(a) in the case of Australia:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of Australia;
(b) in the case of France:
(i) the income tax ("l'impôt sur le revenu");
(ii) the corporation tax ("l'impôt sur les sociétés");
(iii) the additional taxes on corporations ("les contributions sur l'impôt sur les sociétés"); and
(iv) widespread social security contributions ("contributions sociales généralisées") and contributions for the reimbursment of the social debt ("contributions pour le remboursement de la dette sociale"), including any withholding tax with respect to the aforesaid taxes.
2.
This Convention shall also apply to any identical or substantially similar taxes which are subsequently imposed by a Contracting State in addition to, or in place of the existing taxes to which this Convention applies. The competent authorities of the Contracting States shall notify each other of significant changes which have been made in their law relating to taxes to which this Convention applies.
3.
Notwithstanding paragraphs 1 and 2, the taxes to which Articles 25 and 26 shall apply are:
(a) in the case of Australia, taxes of every kind and description imposed under the federal taxes laws administered by the Commissioner of Taxation; and
(b) in the case of France, taxes of every kind and description imposed on behalf of France or its political subdivisions or local authorities
Article 3 DEFINITIONS
1.
For the purposes of this Convention, 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; andand 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 seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "France" means the European and Overseas Departments of the French Republic including the territorial sea, and any area outside the territorial sea within which, in accordance with international law, the French Republic has sovereign rights for the purpose of exploring and exploiting the natural resources of the seabed and its subsoil and the superjacent waters;
(c) the terms "Contracting State", "a Contracting State" and "the other Contracting State" mean Australia or France, as the context requires;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) the term "enterprise" applies to the carrying on of any business;
(g) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Convention applies by virtue of paragraphs 1 and 2 of Article 2;
(i) the term "French tax" means tax imposed by France, being tax to which this Convention applies by virtue of paragraphs 1 and 2 of Article 2;
(j) 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 France, the minister in charge of the budget or an authorised representative of the minister;
(k) the term "business" includes the performance of professional services and of other activities of an independent character;
(l) the term "international traffic" means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely from a place or between places in the other Contracting State.
2.
In this Convention, the terms "Australian tax" and "French tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes referred to in Article 2.
3.
As regards the application of the Convention at any time by a Contracting State, 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 State concerning the taxes to which the Convention applies, any meaning under the applicable tax law of that State prevailing over a meaning given to the term under other law of that State.
Article 4 RESIDENCE
1.
For the purposes of this Convention, the term "resident of a Contracting State" 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 France, a person who is domiciled in France for the purposes of French tax.A Contracting State or a political subdivision or statutory body or a local authority thereof is also a resident of that State for the purposes of this Convention.
2.
A person is not a resident of a Contracting State for the purposes of this Convention if the person is liable to tax in that State in respect only of income from sources in that State.
3.
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, the person's status shall be determined as follows:
(a) the individual shall be deemed to be a resident only of the State in which a permanent home is available to that individual; but if a permanent home is available in both States, or in neither of them, that individual shall be deemed to be a resident only of the State with which the individual's personal and economic relations are closer (centre of vital interests);
(b) if the State in which the centre of vital interests is situated cannot be determined, the individual shall be deemed to be a resident only of the State of which that individual is a national or citizen.
4.
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
5.
The term "resident of a Contracting State" shall include, where that State is France, any partnership or group of persons which has its place of effective management in France and all partners, shareholders or other members of which are personally liable to tax therein in respect of their part of the profits of those partnerships or groups of persons pursuant to French domestic laws.
Article 5 PERMANENT ESTABLISHMENT
1.
For the purposes of this Convention, the term "permanent establishment" means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
2.
The term "permanent establishment" shall include especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, quarry or other place of extraction of natural resources; and
(g) an agricultural, pastoral or forestry property.
3.
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
4.
An enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if:
(a) it has a building site or construction, installation or assembly project in that State which exists for more than twelve months; or
(b) it carries on supervisory activities in that State for more than six months in connection with a building site, or a construction, installation or assembly project which is being undertaken in that State; or
(c) it maintains substantial equipment for rental or other purposes within that State (excluding equipment let under a hire-purchase agreement) for more than six months.
5.
(a) The duration of activities under subparagraphs a) and b) of paragraph 4 will be determined by aggregating the periods during which activities are carried on in a Contracting State by associated enterprises provided that the activities of the enterprise in that State are connected with the activities carried on in that State by its associate.
(b) The period during which two or more associated enterprises are carrying on concurrent activities will be counted only once for the purpose of determining the duration of activities.
(c) For the purposes of this Article, an enterprise shall be deemed to be associated with another enterprise if:
(i) one is controlled directly or indirectly by the other; or
(ii) both are controlled directly or indirectly by the same person or persons.
6.
A person acting in a Contracting State on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph 7 applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if:
(a) the person has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting the person manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
7.
An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of the person's business as such a broker or agent.
8.
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
9.
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph 7 of Article 11 and paragraph 5 of Article 12 whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of a Contracting State, has a permanent establishment in a Contracting State.
Article 6 INCOME FROM REAL PROPERTY
1.
Income from real property, including income from an agricultural, pastoral or forestry property, 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 law of Australia, and shall also include:
(i) a lease of land and any other interest in or over land, whether improved or not including a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine those deposits or resources; and
(ii) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, 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 law 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; and
(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 real property.
3.
The provisions of paragraph 1 shall apply to income derived from the direct use, letting or use in any other form of real property.
4.
Notwithstanding the provisions of Article 7, where shares or other rights in a company, trust or comparable institution entitle a person to the enjoyment of real property of that company, trust or comparable institution, income derived from the direct use, letting or use in any other form of that right of enjoyment may be taxed in the Contracting State in which the real property is situated.
5.
The provisions of paragraphs 1, 3 and 7 shall also apply to income from real property of an enterprise.
6.
The provisions of paragraph 4 shall also apply to income of an enterprise derived from the direct use, letting or use in any other form of a right of enjoyment referred to in that paragraph.
7.
Any interest or right referred to in paragraph 2 or 4 shall be regarded as situated where the buildings, land, mineral, oil or gas deposits, quarries, mineral sources or natural resources, as the case may be, are situated or where the exploration may take place.
Article 7 BUSINESS PROFITS
1.
The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
2.
Where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment.
3.
In the determination of the profits of a permanent establishment there shall be allowed as deductions expenses of the enterprise, including executive and general administrative expenses, which are deductible according to the law of the State in which the permanent establishment is situated whether incurred in that State or elsewhere.
4.
If the information available to the competent authority of a Contracting State is inadequate to determine the profits to be attributed to the permanent establishment of an enterprise, the competent authority may apply to that enterprise for that purpose the provisions of the taxation law of that State, provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
5.
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
6.
Where profits include items of income which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article.
7.
Notwithstanding the preceding provisions of this Article, profits of an enterprise of a Contracting State from carrying on a business of any form of insurance other than life insurance may be taxed in the other Contracting State in accordance with the law of that other State relating specifically to the taxation of any person who carries on such a business, provided that if the law in force in either Contracting State at the date of signature of this Convention relating to the taxation of such a person is varied (otherwise than in minor respects so as not to affect its general character), the Contracting States shall consult with each other with a view to agreeing to such amendment of this paragraph as may be necessary.
8.
Where:
(a) a resident of a Contracting State is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated in that other State and that share of business profits shall be attributed to that permanent establishment.
Article 8 SHIPS AND AIRCRAFT
1.
Profits of an enterprise of a Contracting State derived from the operation of ships or aircraft in international traffic shall be taxable only in that State.
2.
Notwithstanding the provisions of paragraph 1, profits of an enterprise of a Contracting State derived from the operation of ships or aircraft may be taxed in the other Contracting State to the extent that they are profits derived directly or indirectly from ship or aircraft operations confined solely to places in that other State.
3.
The amount which shall be charged to tax in a Contracting State under paragraph 2 in respect of transport operations of ships shall not exceed 5 per cent of the amount paid or payable (net of rebates) in respect of carriage.
4.
The provisions of paragraph 3 shall not apply to profits from the operation of ships, where the profits are attributable to a permanent establishment of the enterprise situated in the other Contracting State.
5.
The profits to which the provisions of paragraphs 1 and 2 apply include profits from the operation of ships or aircraft derived through participation in a pool service or other profit sharing arrangement.
6.
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise which are shipped in a Contracting State and are discharged at a place in that State (without having been discharged outside that State) shall be treated as profits from ship or aircraft operations confined solely to places in that State.
Article 9 ASSOCIATED ENTERPRISES
1.
Where:
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,and in either case conditions exist between the two enterprises in their commercial or financial relations which differ from those which may be expected between independent enterprises dealing wholly independently with one another, then any profits which might, but for those conditions, be expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2.
If the information available to the competent authority of a Contracting State is inadequate to determine the profits to be attributed to an enterprise, the competent authority may apply to that enterprise for that purpose the provisions of the taxation law of that State, provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
3.
Where, according to the provisions of paragraphs 1 and 2, profits are included by a Contracting State in the profits of an enterprise, the other Contracting State shall, on a claim being made by the other enterprise concerned, consistently with its law consider the inclusion so made and the provision of relief to that other enterprise in relation to the taxation of profits which the other State determines to be profits which, but for the particular conditions referred to in paragraphs 1 and 2, might have been expected to accrue to the first-mentioned enterprise.
Article 10 DIVIDENDS
1.
Dividends paid by a company which is a resident of a Contracting State for the purposes of its tax, being dividends beneficially owned by a resident of the other Contracting State may be taxed in that other State.
2.
However, those dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed:
(a) 0 per cent where those dividends are paid out of profits that have borne the normal rate of company tax and those dividends are paid to a company which, in the case of Australia, holds directly at least 10 per cent of the voting power of the company paying the dividends, or in the case of France, holds directly at least 10 per cent of the capital of the company paying the dividends; and
(b) 5 per cent of the gross amount of other dividends, if the beneficial owner of those dividends is a company which, in the case of Australia, holds directly at least 10 per cent of the voting power of the company paying the dividends, or in the case of France, holds directly at least 10 per cent of the capital of the company paying the dividends; and
(c) 15 per cent of the gross amount of the dividends in all other cases,provided that if the relevant law in either Contracting State at the date of signature of this Convention is varied otherwise than in minor respects so as not to affect its general character, the Contracting States shall consult each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
3.
The term "dividends" as used in this Article means income from shares or other rights, not being debt claims, participating in profits, as well as other amounts which are subjected to the same taxation treatment as a distribution or dividend by the law of the State of which the company making the distribution is a resident for the purposes of its tax.
4.
The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated in that other State, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment. In such case, the provisions of Article 7 shall apply.
5.
Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company - being dividends beneficially owned by a person who is not a resident of the other Contracting State - except insofar as the holding in respect of which such dividends are paid is effectively connected with a permanent establishment situated in that other State, even if the dividends paid consist wholly or partly of profits or income arising in such other State. This paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of France for the purposes of French tax.
Article 11 INTEREST
1.
Interest arising in a Contracting State and beneficially owned by a resident of the other Contracting State may be taxed in that other State.
2.
However, that interest may also be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3.
Notwithstanding paragraph 2, interest arising in a Contracting State and beneficially owned by a resident of the other Contracting State may not be taxed in the first-mentioned State if:
(a) the interest is derived from the investment of official reserve assets by the government of a Contracting State or a political subdivision or local authority thereof, its monetary institutions or a bank performing central banking functions in that State; or
(b) the interest is derived by a financial institution which is unrelated to and dealing wholly independently with the payer. For the purposes of this Article, the term "financial institution" means a bank or other enterprise substantially deriving its profits by raising debt finance in the financial markets or by taking deposits at interest and using those funds in carrying on a business of providing finance.
4.
Notwithstanding paragraph 3, interest referred to in subparagraph b) of that paragraph may be taxed in the State in which it arises at a rate not exceeding 10 per cent of the gross amount of the interest if the interest is paid as part of an arrangement involving back-to-back loans or other arrangement that is economically equivalent and intended to have a similar effect to back-to-back loans.
5.
The term "interest" in this Article includes interest from government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, interest from any other form of indebtedness, as well as income which is subjected to the same taxation treatment as income from money lent by the law of the Contracting State in which the income arises. Penalty charges for late payment shall not be regarded as interest for the purpose of this Article.
6.
The provisions of paragraphs 1 and 2, subparagraph b) of paragraph 3 and paragraph 4 of this Article shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises, through a permanent establishment situated in that other State, and the indebtedness in respect of which the interest is paid is effectively connected with that permanent establishment. In such case the provisions of Article 7 shall apply.
7.
Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment, then such interest shall be deemed to arise in the State in which the permanent establishment is situated
8.
Where, by reason of a special relationship between the payer and the beneficial owner of the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might reasonably have been expected to have been agreed upon by the payer and the beneficial owner in the absence of that relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Convention.
Article 12 ROYALTIES
1.
Royalties arising in a Contracting State and beneficially owned by a resident of the other Contracting State may be taxed in that other State.
2.
However, those royalties may also be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 5 per cent of the gross amount of the royalties.
3.
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; or
(b) the supply of scientific, technical, industrial or commercial knowledge or information; or
(c) the supply of any assistance that is 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) or any such knowledge or information as is mentioned in subparagraph b); or
(d) the use of, or the right to use:
(i) motion picture films; or
(ii) films or audio or video tapes or disks, or any other means of image or sound reproduction or transmission for use in connection with television, radio or other broadcasting; or
(e) total or partial forbearance in respect of the use or supply of any property or right referred to in this paragraph.
4.
The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated in that other State, and the right or property in respect of which the royalties are paid or credited is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
5.
Royalties shall be deemed to arise in a Contracting State when the payer is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment, then such royalties shall be deemed to arise in the State in which the permanent establishment is situated.
6.
Where, by reason of a special relationship between the payer and the beneficial owner of the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might reasonably have been expected to have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the amount of the payments or credits shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Convention.
Article 13 ALIENATION OF PROPERTY
1.
Income, profits or gains derived by a resident of a Contracting State from the alienation of real property situated in the other Contracting State may be taxed in that other State.
2.
Income, profits or gains from the alienation of property, other than real property, that forms part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise), may be taxed in that other State.
3.
Income, profits or gains of an enterprise of a Contracting State from the alienation of ships or aircraft operated by that enterprise in international traffic, or of property (other than real property) pertaining to the operation of those ships or aircraft, shall be taxable only in that State.
4.
Income, profits or gains derived by a resident of a Contracting State from the alienation of any shares or other interests in a company, or of an interest of any kind in a partnership, trust or other entity, where the value of the assets of such entity, whether they are held directly or indirectly (including through one or more interposed entities, such as, for example, through a chain of companies), is principally attributable to real property situated in the other Contracting State, may be taxed in that other State.
5.
Where an individual who upon ceasing to be a resident of a Contracting State, is treated under the taxation law of that State as having alienated any property and is taxed in that State by reason thereof, the individual may elect to be treated for the purposes of taxation in the other Contracting State as if the individual had, immediately before ceasing to be a resident of the first-mentioned State, alienated and reacquired the property for an amount equal to its fair market value at that time.
6.
Gains of a capital nature from the alienation of any property, other than that referred to in the preceding paragraphs shall be taxable only in the Contracting State of which the alienator is a resident.
7.
In this Article, the term "real property" has the same meaning as it has in Article 6.
8.
The situation of real property shall be determined for the purposes of this Article in accordance with paragraph 7 of Article 6.
Article 14 INCOME FROM EMPLOYMENT
1.
Subject to the provisions of Articles 15, 17, and 18, remuneration derived by an individual who is a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
2.
Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
(a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the fiscal year of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not borne by a permanent establishment which the employer has in that other State.
3.
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of a Contracting State may be taxed in that State.
Article 15 DIRECTORS' FEES
Directors' fees and similar payments derived by a resident of a Contracting State in that person's capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.Article 16 ENTERTAINERS AND SPORTSPERSONS
1.
Notwithstanding the provisions of Articles 7 and 14, income derived by entertainers (such as theatre, motion picture, radio or television artists and musicians) and sports persons from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
2.
Where income in respect of personal activities exercised by an entertainer or sports person in that person's capacity as such accrues not to that person but to another person, whether a resident of a Contracting State or not, that income may, notwithstanding the provisions of Articles 7 and 14, be taxed in the Contracting State in which the activities of the entertainer or sports person are exercised.
Article 17 PENSIONS AND ANNUITIES
1.
Subject to the provisions of paragraph 2 of Article 18, pensions and annuities paid to a resident of a Contracting State shall be taxable only in that State.
2.
The term "annuity" means any stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
3.
Notwithstanding anything in this Convention, any pension or allowance that is paid by a Contracting State in respect of wounds, disabilities or death caused by war, or in respect of war service, and is exempt from tax under the law of that State, to a resident of the other Contracting State shall be exempt from tax in that other State.
4.
(a) Contributions borne by an individual who is a resident of a Contracting State, and who renders services in the course of an employment in that State, to a pension scheme established and recognised for tax purposes in the other Contracting State shall, in determining the individual's tax payable, be treated in the first-mentioned State in the same way and subject to the same conditions and limitations as contributions made to a pension scheme that is recognised for tax purposes in that State, provided that:
(i) the individual was not a resident of that State, and was participating in the pension scheme, immediately before beginning to exercise employment in that State; and
(ii) the pension scheme is accepted by the competent authority of that State as generally corresponding to a pension scheme recognised as such for tax purposes by that State.
(b) For the purposes of subparagraph a):
(i) the term "a pension scheme" means an arrangement in which the individual participates in order to secure retirement benefits payable in respect of the services referred to in subparagraph a); and
(ii) a pension scheme is "recognised for tax purposes" in a State if the contributions to the scheme would qualify for tax relief in that State.
Article 18 GOVERNMENT SERVICE
1.
(a) Salaries, wages and other similar remuneration (other than a pension or annuity) paid by a Contracting State or a political subdivision or 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 salaries, wages and other similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of, and a national or citizen of, that State and is not also a national or citizen of the first-mentioned State.
2.
(a) Any pension paid by, or out of funds created by, a Contracting State or a political subdivision or 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 State and is not also a national or citizen of the first-mentioned State.
3.
The provisions of Articles 14, 15, 16 and 17 shall apply to salaries, wages and other similar remuneration, or to pensions, in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or statutory body or local authority thereof.
Article 19 STUDENTS
Payments which a student who is, or was immediately before visiting a Contracting State, a resident of the other Contracting State and who is temporarily present in the first-mentioned State solely for the purpose of the student's education receives from sources outside that first-mentioned State for the purpose of the student's maintenance or education shall not be taxed in that first-mentioned State.Article 20 OTHER INCOME
1.
Items of income of a resident of a Contracting State wherever arising which are not dealt with in the foregoing Articles of this Convention shall be taxable only in that State.
2.
The provisions of paragraph 1 shall not apply to income, other than income from real property as defined in paragraph 2 of Article 6, derived by a resident of a Contracting State who carries on business in the other Contracting State through a permanent establishment situated therein and the right or property in respect of which the income is paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
3.
Notwithstanding the provisions of paragraphs 1 and 2, items of income of a resident of a Contracting State not dealt with in the foregoing Articles of this Convention from sources in the other Contracting State may also be taxed in the other Contracting State.
Article 21 SOURCE OF INCOME
1.
Income, profits or gains derived by a resident of a Contracting State which, under Articles 6 to 8, 10 to 16 and 18 may be taxed in the other Contracting State, shall be deemed to be income from sources in that other State.
2.
Profits included in the profits of an enterprise of a Contracting State under paragraph 1 of Article 9 shall for purposes of the taxation of that enterprise be deemed to be income of that enterprise derived from sources in that Contracting State.
3.
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8, 10 to 16 and 18, may be taxed in the other Contracting State shall for the purposes of Article 23 and of the law of the first-mentioned Contracting State relating to its tax be deemed to arise from sources in the other Contracting State.
Article 22 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 Convention 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 23 ELIMINATION OF DOUBLE TAXATION
1.
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article), French tax paid under the law of France and in accordance with this Convention, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in France shall be allowed as a credit against Australian tax payable in respect of that income.
2.
In the case of France, double taxation shall be avoided in the following manner:
(a) Notwithstanding any other provision of this Convention, income which may be taxed or shall be taxable only in Australia in accordance with the provisions of this Convention shall be taken into account for the computation of the French tax where the beneficiary of such income is a resident of France and where such income is not exempted from corporation tax according to French domestic law. In that case, the Australian tax shall not be deductible from such income but the resident of France shall, subject to the conditions and limits provided for in subparagraph (i) and (ii), be entitled to a tax credit against French tax. Such tax credit shall be equal:
(i) in the case of income other than mentioned in subparagraph (ii), to the amount of French tax attributable to such income provided that the resident of France is subject to Australian tax in respect of such income;
(ii) in the case of income referred to in Article 7 and paragraph 2 of Article 13 which is subject to the corporation tax, and in the case of income referred to in Article 10, Article 11, Article 12, paragraph 1 of Article 13 and paragraph 3 of Article 14, Article 15, Article 16 and Article 20, to the amount of tax paid in Australia in accordance with the provisions of those Articles. However, such tax credit shall not exceed the amount of French tax attributable to such income.
(b) The term "amount of French tax attributable to such income" as used in subparagraph a) means:
(i) where the tax of such income is computed by applying a proportional rate, the amount of the net income concerned multiplied by the rate which actually applies to that income;
(ii) where the tax on such income is computed by applying a progressive scale, the amount of the net income concerned multiplied by the rate resulting from the ratio of the tax actually payable on the total net income taxable in accordance with French law to the amount of that total net income.
Article 24 MUTUAL AGREEMENT PROCEDURE
1.
Where a person considers that the actions of one or both ofthe Contracting States result or will result for the person in taxation not in accordance with this Convention, the person may, irrespective of the remedies provided by the domestic law of those States concerning taxes to which this Convention applies, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within 3 years from the first notification of the action resulting in taxation not in accordance with this Convention.
2.
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Convention. The solution so reached shall be implemented notwithstanding any time limits in the domestic law of the Contracting States.
3.
The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of this Convention. In particular, they may consult together to endeavour to agree to the same allocation of income between associated enterprises mentioned in Article 9. They may also consult together for the elimination of double taxation in cases not provided for in the Convention.
4.
The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs.
5.
For the purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of this Convention may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph 3 of this Article or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States.
Article 25 EXCHANGE OF INFORMATION
1.
The competent authorities of the Contracting States shall exchange such information as is foreseeably relevant for carrying out the provisions of this Convention or to the administration or enforcement of the domestic laws concerning taxes referred to in paragraph 3 of Article 2 insofar as the taxation thereunder is not contrary to the Convention. The exchange of information is not restricted by Article 1.
2.
Any information received under paragraph 1 by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administration bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to the taxes referred to in paragraph 1, or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
3.
In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;
(b) to supply information which is not obtainable by the competent authority under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information the disclosure of which would be contrary to public policy (ordre public).
4.
If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other State may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 except where such limitations would preclude a Contracting State from supplying information solely because it has no domestic interest in such information.
5.
In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or relates to ownership interests in a person.
Article 26 ASSISTANCE IN RECOVERY
1.
The Contracting States shall lend assistance to each other in the collection of revenue claims. This assistance is not restricted by Article 1. The competent authorities of the Contracting States may by mutual agreement settle the mode of application of this Article.
2.
The term "revenue claim" as used in this Article means an amount owed in respect of taxes referred to in paragraph 3 of Article 2, insofar as the taxation thereunder is not contrary to this Convention or any other instrument to which the Contracting States are parties, as well as interest, administrative penalties and costs of collection or conservancy related to such amount.
3.
When a revenue claim of a Contracting State is enforceable under the laws of that State and is owed by a person who, at that time, cannot, under the laws of that State, prevent its collection, that revenue claim shall, at the request of the competent authority of that State, be accepted for purposes of collection by the competent authority of the other Contracting State. That revenue claim shall be collected by that other State in accordance with the provisions of its laws applicable to the enforcement and collection of its own taxes as if the revenue claim were a revenue claim of that other State.
4.
When a revenue claim of a Contracting State is a claim in respect of which that State may, under its law, take measures of conservancy with a view to ensure its collection, that revenue claim shall, at the request of the competent authority of that State, be accepted for purposes of taking measures of conservancy by the competent authority of the other Contracting State. That other State shall take measures of conservancy in respect of that revenue claim in accordance with the provisions of its laws as if the revenue claim were a revenue claim of that other State even if, at the time when such measures are applied, the revenue claim is not enforceable in the first-mentioned State or is owed by a person who has a right to prevent its collection.
5.
Notwithstanding the provisions of paragraphs 3 and 4, a revenue claim accepted by a Contracting State for purposes of paragraph 3 or 4 shall not, in that State, be subject to the time limits or accorded any priority applicable to a revenue claim under the laws of that State by reason of its nature as such. In addition, a revenue claim accepted by a Contracting State for the purposes of paragraphs 3 or 4 shall not, in that State, have any priority applicable to that revenue claim under the laws of the other Contracting State.
6.
Proceedings with respect to the existence, validity or the amount of a revenue claim of a Contracting State shall not be brought before the courts or administrative bodies of the other Contracting State.
7.
Where, at any time after a request has been made by a Contracting State under paragraph 3 or 4 and before the other Contracting State has collected and remitted the relevant revenue claim to the first-mentioned State, the relevant revenue claim ceases to be:
(a) in the case of a request under paragraph 3, a revenue claim of the first-mentioned State that is enforceable under the laws of that State and is owed by a person who, at that time, cannot, under the laws of that State, prevent its collection, or
(b) in the case of a request under paragraph 4, a revenue claim of the first-mentioned State in respect of which that State may, under its laws, take measures of conservancy with a view to ensure its collectionthe competent authority of the first-mentioned State shall promptly notify the competent authority of the other State of that fact and, at the option of the other State, the first-mentioned State shall either suspend or withdraw its request.
8.
In no case shall the provisions of this Article be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;
(b) to carry out measures which would be contrary to public policy (ordre public);
(c) to provide assistance if the other Contracting State has not pursued all reasonable measures of collection or conservancy, as the case may be, available under its laws or administrative practice;
(d) to provide assistance in those cases where the administrative burden for that State is clearly disproportionate to the benefit to be derived by the other Contracting State;
(e) to provide assistance if that State considers that the taxes with respect to which assistance is requested are imposed contrary to generally accepted taxation principles.
Article 27 DIPLOMATIC AND CONSULAR PRIVILEGES
1.
Nothing in this Convention shall affect diplomatic or consular privileges under the general rules of international law or under the provisions of special international agreements.
2.
This Convention shall not apply to international organisations, to organs or officials thereof or to persons who are members of a diplomatic or consular mission of a third State and who, being present in a Contracting State, are not treated in either Contracting State as residents in respect of taxes on income.
Article 28 MISCELLANEOUS
Notwithstanding the provisions of subparagraph b) of paragraph 1 of Article 2 of this Convention, for the purposes of the assessment in respect of the capital tax ("l'impôt de solidarité sur la fortune") of an individual who is resident of France and is a citizen of Australia without being a national of France, property situated outside France which that individual owns on 1 January in each of the five calendar years following that in which the individual became a resident of France shall not be included in the basis of assessment of the tax pertaining to each of those five years. If that person ceases to be a resident of France for a period of at least three years, and then becomes a resident of France again, property situated outside France which that person owns on 1st January in each of the five calendar years following that in which the person became a resident of France again shall not be included in the basis of assessment of the tax pertaining to each of those five years.Article 29 PARTNERSHIPS
1.
In the case of a partnership or similar entity which has its place of effective management in Australia and which is treated in Australia as fiscally transparent:
(a) a partner who is a resident of Australia and whose share of the income, profits or gains of the partnership is taxed in Australia in all respects as though such amounts had been derived by the partner directly, shall be entitled to the benefits of this Convention with respect to their share of such amounts arising in France as though the partner had derived such amounts directly;
(b) a partner who is a resident of France :
(i) shall be entitled to the benefits of this Convention with respectto their share of such income, profits or gains of the partnership arising in Australia as though the partner had derived such amounts directly; and
(ii) shall be taxable in respect of their share of such income, profits or gains of the partnership arising in France as though the partner had derived such amounts directly but any such amounts which are taxed in Australia shall be treated for the purpose of paragraph 2 of Article 23 of this Convention as arising from sources in Australia.
2.
In the case of a partnership which has its place of effective management in a State other than a Contracting State and which is treated in that third State as fiscally transparent, a partner who is a resident of a Contracting State and whose share of the income, profits or gains of the partnership is taxed in that Contracting State in all respects as though those amounts had been derived directly by the partner, shall be entitled to the benefits of this Convention with respect to their share of such amounts arising in the other Contracting State as though the partner had derived such amounts directly, subject to the following conditions:
(a) the absence of contrary provisions in a taxation convention between a Contracting State and the third State; and
(b) the partner's share of the income, profits or gains of the partnership is taxed in the same manner, including the nature or source of those amounts and the time when those amounts are taxed, as would have been the case if the amounts had been derived directly; and
(c) it is possible to exchange information concerning the partnership or partners under the terms of a taxation convention between the Contracting State in which the income, profits or gains arise and the third State.
3.
For the purposes of paragraphs 1 and 2 of this Article, income, profits or gains shall be deemed to arise in a Contracting State in particular where they are attributable to a permanent establishment which the partnership or entity has in that State.
4.
Where, under any provision of this Convention, a partnership or other group of persons which is a resident of France in accordance with paragraph 5 of Article 4, is entitled to relief from tax in Australia on any income, profits or gains, that provision shall not be construed as restricting the right of Australia to tax any member of the partnership or other group who is a resident of Australia on their share of such amounts; but any such amounts shall be treated for the purposes of paragraph 1 of Article 23 of this Convention as arising from sources in France.
Article 30 ENTRY INTO FORCE
1.
The Contracting States shall notify each other in writing through the diplomatic channel of the completion of their domestic requirements for the entry into force of this Convention. This Convention shall enter into force on the first day of the second month following the date of receipt of the last notification, and thereupon the Convention shall have effect:
(a) in the case of Australia:
(i) in respect of withholding tax on income that is derived by a non resident, in relation to income derived on or after 1 January in the calendar year next following the date on which the Convention enters into force;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following the date on which the Convention enters into force;
(b) in the case of France:
(i) in respect of taxes on income withheld at source, for amounts taxable after the calendar year in which the Convention enters into force;
(ii) in respect of taxes on income which are not withheld at source, for income relating, as the case may be, to any calendar year or accounting period beginning after the calendar year in which the Convention enters into force;
(iii) in respect of the other taxes, for taxation the taxable event of which will occur after the calendar year in which the Convention enters into force.
(c) for purposes of Article 25, from the date of entry into force of this Convention;
(d) notwithstanding the provisions of subparagraphs a) and b), Article 26 shall have effect from the date agreed in an exchange of notes through the diplomatic channel.
2.
The Agreement between the Government of Australia and the Government of the French Republic for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income signed in Canberra on 13 April 1976 (as amended by the Protocol signed in Paris on 19 June 1989) and the Agreement between the Government of the Commonwealth of Australia and the Government of the French Republic for the avoidance of double taxation of income derived from international air transport signed in Canberra on 27 March 1969 shall be terminated and shall cease to have effect from the dates on which this Convention becomes effective in accordance with paragraph 1 of this Article.
3.
Notwithstanding the entry into force of this Convention, an individual who is entitled to the benefits of Article 19 of the Agreement between the Government of Australia and the Government of the French Republic for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income signed in Canberra on 13 April 1976 (as amended by the Protocol signed in Paris on 19June 1989) at the time of the entry into force of this Convention shall continue to be entitled to such benefits until such time as the individual would have ceased to be entitled to such benefits if the Agreement had remained in force.
Article 31 TERMINATION
This Convention shall continue in effect indefinitely, but either Contracting State may terminate the Convention by giving written notice of termination, through the diplomatic channel, to the other State at least 6 months before the end of any calendar year beginning after the expiration of 5 years from the date of its entry into force and, in that event, the Convention shall cease to be effective:
(a) in the case of Australia:
(i) in respect of withholding tax on income that is derived by a non resident, in relation to income derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in the case of France:
(i) in respect of taxes on income withheld at source, for amounts taxable after the calendar year in which the notice of termination is given;
(ii) in respect of taxes on income which are not withheld at source, for income relating, as the case may be, to any calendar year or accounting period beginning after the calendar year in which the notice of termination is given;
(iii) in respect of the other taxes, for taxation the taxable event of which will occur after the calendar year in which the notice of termination is given.In witness whereof the undersigned, duly authorised thereto, have signed this Convention.
Done in duplicate at Paris this twentieth day of June two thousand and six in the English and French languages, both texts being equally authentic.
PROTOCOL
FOR THE GOVERNMENT OF AUSTRALIA:
ALEXANDER DOWNER
[Signatures omitted]FOR THE GOVERNMENT OF THE FRENCH REPUBLIC:
PHILIPPE DOUSTE BLAZY
THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE FRENCH REPUBLIC
Have agreed at the signing of the Convention between the two Governments for the avoidance of double taxation with respect to taxes on income and the prevention of fiscal evasion upon the following provisions, which shall form an integral part of the said Convention (in this Protocol referred to as "the Convention"):
1
The competent authorities of the Contracting States may settle, jointly or separately, the mode of application of the Convention.
2
With reference to paragraph 5 of Article 4 (Residence),where a resident of a third State is a member of such partnership or group that is not subject to corporation tax in France, the Australian income tax liability in respect of the member's share of the income, profits or gains of the partnership or group shall be determined in accordance with Australian domestic law, including the provisions of any taxation convention between Australia and that third State, it being understood that such partnership or group shall be treated as fiscally transparent for the purposes of entitlement to Australian tax benefits under that convention.
3
With reference to Article 12 (Royalties),the term "royalties" does not include payments for the use of spectrum licenses. The provisions of Article 7 of the Convention shall apply to such payments.
4
With reference to Article 18 (Government service),business activities carried on by a statutory body of a Contracting State include activities of that body which are not primarily supported by public funds of that State or of one or more political subdivisions or local authorities thereof.
In witness whereof the undersigned, duly authorised thereto, have signed this Convention.
Done in duplicate at Paris this twentieth day of June two thousand and six in the English and French languages, both texts being equally authentic.
FOR THE GOVERNMENT OF AUSTRALIA:
ALEXANDER DOWNER
[Signatures omitted]FOR THE GOVERNMENT OF THE FRENCH REPUBLIC:
PHILIPPE DOUSTE BLAZY]
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 11 formerly read:
SCHEDULE 11 - French Agreement
Section 3
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE FRENCH REPUBLIC FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOMEas amended by Sch 11A - the French protocol
ARTICLE 1 Taxes to which Agreement applies
(1)
The existing taxes to which this Agreement applies are-
(a) in Australia:
the Australian income tax, including the additional tax upon the undistributed amount of the distributable income of a private company;
(b) in France:
(i) the income tax; andincluding any withholding tax, prepayment (précompte) or advance payment with respect to the aforesaid taxes.
(ii) the corporation tax,
(2)
This Agreement shall also apply to any identical or substantially similar taxes which are subsequently imposed by one of the Contracting States in addition to, or in place of, the existing taxes to which this Agreement applies.
ARTICLE 2 Definitions
(1)
In this Agreement, unless the context otherwise requires-
(a) the term "Australia" means the Commonwealth of Australia and includes-
(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 Coral Sea Islands Territory; and
(vi) any area outside the territorial limits of the Commonwealth of Australia and any of the said Territories in respect of which there is for the time being in force a law of the Commonwealth of Australia or of a State or part of the Commonwealth of Australia or of a Territory aforesaid which is conformable with international law and which deals with the exploitation of any of the natural resources of the sea-bed and sub-soil of the continental shelf;
(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;
(c) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" mean Australia or France, as the context requires;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean an industrial or commercial enterprise carried on by a resident of Australia or an industrial or commercial enterprise carried on by a resident of France, as the context requires;
(g) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 1;
(h) the term "French tax" means tax imposed by France, being tax to which the Agreement applies by virtue of Article 1;
(i) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or his authorized representative; in the case of France, the Minister of Economy and Finance or his authorized representative; and, in the case of any Territory to which this Agreement is extended under Article 27, the competent authority for the administration in such Territory of the taxes to which this Agreement applies.HistoryArt 2(1) amended by Sch 11A (the French protocol).
(2)
In this Agreement, the terms "Australian tax" and "French tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes referred to in Article 1.
(3)
In the application of the provisions of this Agreement by a Contracting State any term not otherwise defined shall, unless the context otherwise requires, have the meaning which it has under the laws of that Contracting State relating to the taxes to which this Agreement applies by virtue of Article 1.
ARTICLE 3 Residence
(1)
(a) For the purposes of this Agreement, a person is a resident of Australia if he is a resident of Australia for purposes of Australian tax. However, in relation to income from sources in France, a person who is subject to Australian tax on income which is from sources in Australia shall be treated as a resident of Australia only if the income from sources in France is subject to Australian tax or, where that income is exempt from Australian tax, it is so exempt solely because it is subject to French tax.
(b) For the purposes of this Agreement, a person is a resident of France if he is domiciled in France for the purposes of French tax.
(2)
Where by reason of the provisions of paragraph (1) an individual is a resident of both Contracting States, then his case shall be determined in accordance with the following rules:
(a) he shall be deemed to be a resident solely of the Contracting State in which he has a permanent home available to him;
(b) if he has a permanent home available to him in both Contracting States, or if he does not have a permanent home available to him in either of them, he shall be deemed to be a resident solely of the Contracting State with which his personal and economic relations are the closer.
(3)
Where by reason of the provisions of paragraph (1) a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 4 Permanent establishment
(1)
For the purposes of this Agreement the term "permanent establishment" means a fixed place of business in which the business of the enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially-
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, quarry or other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property situated in Australia;
(h) a building site or construction, installation or assembly project which exists for more than twelve months.HistoryArt 4(2) amended by Sch 11A (the French protocol).
(3)
An enterprise shall not be deemed to have a permanent establishment merely by reason of-
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(4)
An enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if-
(a) it carries on supervisory activities in that State for more than six months in connection with a building site, or a construction, installation or assembly project which is being undertaken, in that State; or
(b) substantial equipment is being used in that State for more than six months by, for or under contract with the enterprise.
(5)
A person acting in a Contracting State on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (6) applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if-
(a)he has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless his activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting he manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
(6)
An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of his business as such a broker or agent.
(7)
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
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 of 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.HistoryArt 5 substituted by Sch 11A (the French protocol).
ARTICLE 6 Industrial or commercial profits
(1)
The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
(2)
Where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment.
(3)
In the determination of the profits of a permanent establishment there shall be allowed as deductions expenses of the enterprise, including executive and general administrative expenses, which are deductible according to the law of the State in which the permanent establishment is situated, whether incurred in that State or elsewhere.
(4)
If the information available to the competent authority of a Contracting State is inadequate to determine the profits to be attributed to the permanent establishment of an enterprise, the competent authority may apply to that enterprise for that purpose the provisions of the taxation law of that State, provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
(5)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods and merchandise for the enterprise.
(6)
For the purposes of this Article, except as provided in the Articles referred to in this paragraph, the profits of an enterprise do not include income or profits dealt with in Articles 5 and 7 and 9 to 16.
(7)
Notwithstanding the preceding provisions of this Article, profits of an enterprise of a Contracting State from carrying on a business of any form of insurance other than life insurance may be taxed in the other Contracting State in accordance with the law of that other State relating specifically to the taxation of any person who carries on such a business, provided that if the law in force in either Contracting State at the date of signature of this Agreement relating to the taxation of such a person is varied (otherwise than in minor respects so as not to affect its general character), the Contracting States shall consult with each other with a view to agreeing to such amendment of this paragraph as may be necessary.
ARTICLE 7 Shipping
(1)
Profits from the operation of ships derived by a resident of a Contracting State shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1), such profits may be taxed in the other Contracting State where they are profits from operations of ships confined solely to places in that other State.
(3)
In this Article, profits derived from the carriage by ships of passengers, cargo or mail shipped in a Contracting State for discharge at another place in that State shall be treated as profits from operations of ships confined solely to places in that State.
(4)
The amount which shall be charged to tax in a Contracting State under paragraph (2) shall not exceed 5 per cent of the amount paid or payable (net of rebates) in respect of the carriage.
(5)
Paragraph (4) shall not apply to profits from the operation of ships derived by a resident of a Contracting State if-
(a) his principal place of business is in the other Contracting State; or
(b) those profits are derived from activities other than the carriage of passengers, cargo or mail.In such cases, the provisions of Article 6 shall apply.
ARTICLE 8 Associated enterprises
(1)
Where-
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,and in either case conditions exist between the two enterprises in their commercial or financial relations which differ from those which may be expected between independent enterprises dealing wholly independently with one another, then any profits which might, but for those conditions, be expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
If the information available to the competent authority of a Contracting State is inadequate to determine the profits to be attributed to an enterprise, the competent authority may apply to that enterprise for that purpose the provisions of the taxation law of that State, provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
(3)
Where, according to the provisions of paragraph (1), profits are included by a Contracting State in the profits of an enterprise, the other Contracting State shall, on a claim being made by the other enterprise concerned, consistently with its law consider the inclusion so made and the provision of relief to that other enterprise in relation to the taxation of profits which the other State determines to be profits which, but for the particular conditions referred to in paragraph (1), might have been expected to accrue to the first-mentioned enterprise.
ARTICLE 9 Dividends
(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.HistoryArt 9(1) substituted by Sch 11A (the French protocol).
(2)
Dividends paid by a company which is domiciled in France for the purposes of French tax, being dividends to which a resident of Australia is beneficially entitled, may be taxed in France, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends.
(3)
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the taxation law of the Contracting State of which the company making the distribution is a resident.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the resident beneficially entitled to the dividends has in the other Contracting State a permanent establishment with which the holding by virtue of which the dividends are paid is effectively connected. In such a case, the provisions of Article 6 shall apply.
(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.HistoryArt 9(5) substituted by Sch 11A (the French protocol).
(6)
Where an individual who is a resident of Australia receives from a company which is a resident of France a dividend to which he is beneficially entitled and which, if received by a resident of France would entitle the resident to a tax credit (avoir fiscal)-
(a) the individual shall be entitled to a payment by the Government of France equal to that tax credit (avoir fiscal) subject to the deduction of tax at the rate provided for in paragraph (2) of this Article;
(b) the amount of the tax credit (avoir fiscal) shall be included in the assessable income of the individual for purposes of Australian tax; and
(c) the amount of the tax credit (avoir fiscal) shall, for the purposes of Article 23, be treated as income from sources in France.
(7)
Where a person (other than an individual) who is a resident of Australia receives from a company which is a resident of France a dividend to which it is beneficially entitled and a prepayment (précompte) is levied on that dividend-
(a) the person shall be entitled to a payment by the Government of France equal to the amount of that prepayment (précompte) subject to the deduction of tax at the rate provided for in paragraph (2) of this Article;
(b) the amount payable before deduction of that withholding tax shall be included as a dividend in the assessable income of the person for purposes of Australian tax; and
(c) that amount shall, for the purposes of Article 23, be treated as income from sources in France.
ARTICLE 10 Interest
(1)
Interest arising in a Contracting State, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in the first-mentioned State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(2)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to interest by the taxation law of the contracting State in which the income arises.
(3)
The provisions of paragraph (1) shall not apply if the person beneficially entitled to the interest has in the Contracting State in which the interest arises a permanent establishment with which the indebtedness from which the interest arises is effectively connected. In sucha case, the provisions of Article 6 shall apply.
(4)
Interest shall be deemed to arise in a Contracting State when the payer is that Contracting State itself, a State of that Contracting State, a political subdivision or a local authority of that Contracting State or a person who is a resident of that Contracting State for purposes of its tax. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a State other than that of which he is a resident a permanent establishment in connection with which the indebtedness on which the interest is paid was incurred, and the interest is borne by the permanent establishment, then the interest shall be deemed to arise in the State in which the permanent establishment is situated.
(5)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 11 Royalties
(1)
Royalties arising in a Contracting State, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in the first-mentioned State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
(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 paid 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.HistoryArt 11(2) substituted by Sch 11A (the French protocol).
(3)
The provisions of paragraph (1) shall not apply if the person beneficially entitled to the royalties has in the Contracting State in which the royalties arise a permanent establishment with which the asset giving rise to the royalties is effectively connected. In such a case, the provisions of Article 6 shall apply.
(4)
Royalties shall be deemed to arise in a Contracting State when the payer is that Contracting State itself, a State of that Contracting State, a political subdivision or a local authority of that Contracting State or a person who is a resident of that Contracting State for purposes of its tax. Where, however, the person paying the royalties, whether he is a resident of a Contracting State or not, has in a State other than that of which he is a resident a permanent establishment in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment, then the royalties shall be deemed to arise in the State in which the permanent establishment is situated.
(5)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties or between both of them and some other person, the amount of the royalties paid, having regard to what they are paid for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 12 Alienation of real property
(1)
Income from the alienation of real property (including income from the alienation of a lease of land or of any other direct interest in or over land) may be taxed by the Contracting State in which the real property is situated.
(2)
Income from the alienation of shares or comparable interests in a real property co-operative or in a company the assets of which consist wholly or principally of property referred to in paragraph (1) may be taxed by the Contracting State in which that property is situated.
ARTICLE 13 Independent personal services
Income derived by an individual who is a resident of a Contracting State in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to that fixed base.ARTICLE 14 Dependent personal services
(1)
Subject to the provisions of Articles 15, 17, 18 and 19, remuneration derived by an individual who is a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if-
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the year of income (where Australia is the other State) or in the fiscal year (where France is the other State);
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that State.
ARTICLE 15 Directors' fees
Directors' fees and similar payments derived by a resident of a Contracting State in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 16 Public entertainers
(1)
Notwithstanding the provisions of Articles 13 and 14, income derived by public entertainers (such as theatre, motion picture, radio or television artists and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
(2)
Notwithstanding anything contained in this Agreement, where the services of a public entertainer mentioned in paragraph (1) are provided in a Contracting State by an enterprise of the other Contracting State, the profits derived by that enterprise from providing those services may be taxed in the first-mentioned State if the public entertainer performing the services controls, directly or indirectly, that enterprise.
ARTICLE 17 Pensions and annuities
(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.HistoryArt 17(1) substituted by Sch 11A (the French protocol).
(2)
The term "annuity" means any stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
(3)
Notwithstanding anything in this Agreement-
(a) the pensions referred to in paragraphs (4), (5) and (6) of Article 81 of the French General Tax Code shall be exempt from Australian tax so long as they are exempt from French tax;
(b) the pensions and other payments referred to in paragraphs (a) and (b) of subsection 23AD(3) of the Australian Income Tax Assessment Act 1936, as amended, where they are paid by Australia, shall be exempt from French tax so long as they are exempt from Australian tax.
(4)
Notwithstanding paragraph (1), while paragraph (q) of section 23 of the Australian Income Tax Assessment Act 1936, as amended, and in force at the date of signature of this Agreement continues to have effect in relation to retirement pensions derived by residents of Australia from sources out of Australia, any retirement pension derived by a resident of a Contracting State from sources in the other Contracting State shall, if the person deriving the pension so elects, be taxable only in the last-mentioned State.
(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 recognised for tax purposes by that State.HistoryArt 17(5) inserted by Sch 11A (the French protocol).
ARTICLE 18 Government service
(1)
Remuneration (other than a pension or annuity, or remuneration to which Article 19 applies) paid by Australia, a State of Australia or a political subdivision or local authority of Australia or of a State to any individual in respect of services rendered in the discharge of governmental functions shall be exempt from French tax unless the services are rendered in France by an individual who is a French national or is permanently resident in France.HistoryArt 18(1) amended by Sch 11A (the French protocol).
(2)
Remuneration (other than a pension or annuity, or remuneration to which Article 19 applies) paid by France or a local authority thereof to any individual in respect of services rendered in the discharge of governmental functions shall be exempt from Australian tax unless the services are rendered in Australia by an individual who is an Australian citizen or is ordinarily resident in Australia.HistoryArt 18(2) amended by Sch 11A (the French protocol).
(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.HistoryArt 18(3) and (4) substituted for Art 18(3) by Sch 11A (the French protocol).
(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).HistoryArt 18(3) and (4) substituted for Art 18(3) by Sch 11A (the French protocol).
ARTICLE 19 Visiting professors and teachers
(1)
Where a professor or teacher who is a resident of a Contracting State visits the other Contracting State for a period not exceeding two years for the purpose of teaching or conducting research at a university, college, school or other educational institution, remuneration which he receives for so teaching or conducting research shall be taxed only in the first-mentioned State.HistoryArt 19(1) amended by Sch 11A (the French protocol).
(2)
This Article shall not apply to remuneration which he receives for conducting research if the research is undertaken primarily for the private benefit of a specific person or persons.
ARTICLE 20 Students
Payments which a student who is, or was immediately before visiting one of the Contracting States, a resident of the other Contracting State and who is temporarily present in the first-mentioned Contracting State solely for the purpose of his education receives from sources outside that first-mentioned State for the purpose of his maintenance or education shall not be taxed in that first-mentioned State.ARTICLE 21 Income of dual residents
Where a person, who by reason of the provisions of paragraph (1) of Article 3 is a resident of both Contracting States but, by reason of the provisions of paragraph (2) or (3) of that Article, is deemed for the purposes of this Agreement to be a resident solely of one of the Contracting States, derives income-
(a) from sources in that Contracting State, or
(b) from sources outside both Contracting States,that income shall be taxable only in that Contracting State.
ARTICLE 22 Source of income
(1)
Income derived by a resident of a Contracting State which, under Articles 5 to 7 and 9 to 16 may be taxed in the other Contracting State, shall be deemed to be income from sources in that other State.
(2)
Profits included in the profits of an enterprise of a Contracting State under paragraph (1) of Article 8 shall for purposes of the taxation of that enterprise be deemed to be income of that enterprise derived from sources in that Contracting State.
(3)
The provisions of subparagraph (a) of paragraph (2) of Article 23 shall not apply in relation to income derived by a resident of France from sources in any of the Territories described in subparagraph (a) of paragraph (1) of Article 2, or from sources in the area described in that subparagraph, if Australian tax does not apply in relation to that income.
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.HistoryArt 22A inserted by Sch 11A (the French protocol).
ARTICLE 23 Relief from double taxation
(1)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia, French tax paid, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in France (not including, in the case of a dividend, tax paid in respect of the profits out of which the dividend is paid) shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
In the case of France, double taxation shall be avoided in the following manner:
(a) Income derived by a resident of France other than that mentioned in subparagraph (b) below shall be exempt from the French taxes mentioned in subparagraph (b) of paragraph (1) of Article 1 where the income may, under this Agreement, be taxed in Australia.
(b) As regards income to which Article 9, 10, 11, 15 or 16 applies, France may tax the income but shall allow to a resident of France receiving the income from Australia a tax credit corresponding to the amount of tax levied by Australia. The tax credit, not exceeding the amount levied by France on such income, shall be allowed against a tax mentioned in subparagraph (b) of paragraph (1) of Article 1, in the base of which that income is included.
(c) Notwithstanding the provisions of subparagraph (a), French tax may be computed on income chargeable in France by virtue of this Agreement at the rate appropriate to the total income chargeable in accordance with French law.
(d) Where a company which is a resident of France redistributes dividends received from a company which is a resident of Australia and has paid a prepayment (précompte) in respect of the redistribution under deduction of the Australian tax credit referred to in subparagraph (b), the shareholders who are residents of France shall be entitled to a tax credit (avoir fiscal) in accordance with the French tax law as if the deduction under subparagraph (b) had not been made.
(3)
In the event that a Contracting State should cease to allow a company which is a resident of that State relief from its tax in respect of dividends paid to it by a company which is a resident of the other Contracting State, being relief available under the taxation law of the first-mentioned State as in force at the date of signature of this Agreement, that State will immediately advise the other State of the change and enter into negotiations with it to establish new provisions concerning the relief to be allowed in the first-mentioned State under this Article in respect of that State's tax on the dividends.
ARTICLE 24 Complaints by taxpayers
(1)
Where a resident of a Contracting State considers that the actions of one or both of the Contracting States result or will result for him in taxation not in accordance with this Agreement, he may, notwithstanding the remedies provided by the national laws of those States, present his case to the competent authority of the Contracting State of which he is a resident.
(2)
The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement.
(3)
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties arising as to the application of this Agreement.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 25 Exchange of information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the domestic laws of the Contracting States concerning the taxes to which this Agreement applies insofar as the taxation thereunder is not contrary to this Agreement. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
(2)
In no case shall the provisions of paragraph (1) be construed so as to impose on a Contracting State the obligation-
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 26 Diplomatic and consular privileges
(1)
Nothing in this Agreement shall affect diplomatic or consular privileges under the general rules of international law or under the provisions of special international agreements.
(2)
This Agreement shall not apply to international organizations, to organs or officials thereof or to persons who are members of a diplomatic or consular mission of a third State and who, being present in a Contracting State, are not treated in either Contracting State as residents in respect of taxes on income.
ARTICLE 27 Extension to Territories
(1)
This Agreement may be extended, either in its entirety or with any necessary modifications by agreement between the Contracting States, to-
(a) any Territory for whose international relations Australia is responsible; or
(b) any Overseas Territory of the French Republic,which imposes taxes substantially similar in character to those to which this Agreement applies. Any such extension shall take effect from such date and subject to such modifications and conditions (including conditions as to termination) as may be specified and agreed between the Contracting States in Letters to be exchanged through diplomatic channels for this purpose.
(2)
Unless otherwise agreed by both Contracting States, if this Agreement is terminated under Article 29 this Agreement shall cease to be effective in relation to any Territory to which it has been extended under paragraph (1).
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.
HistoryArt 27A inserted by Sch 11A (the French protocol).
ARTICLE 28 Entry into force
(1)
This Agreement shall enter into force on the date on which notes are exchanged through the diplomatic channel notifying that the last of all such things has been done in Australia and France as is necessary to bring the Agreement into force in Australia and France so far as its provisions affect Australian tax and French tax respectively and shall thereupon have effect-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in respect of income derived on or after 1 January 1973;
(ii) in respect of other Australian tax, for any year of income beginning on or after 1 July 1972;
(b) in France-
(i) for withholding tax and prepayment (précompte) relating to any amounts payable on or after 1 January 1973;
(ii) in respect of other French tax for the assessment year 1972 and subsequent years.
(2)
Nothing in this Agreement shall affect the operation of the Agreement between the Governments of the Contracting States for the avoidance of double taxation of income derived from international air transport signed in Canberra on 27 March 1969.
ARTICLE 29 Duration of Agreement
This Agreement shall continue in effect indefinitely, but either Contracting State may, on or before 30 June in any calendar year after the year 1977, give to the other Contracting State notice of termination and, in that event, this Agreement shall cease to be effective-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in respect of income derived on or after the commencement of the financial year beginning on 1 July in the calendar year next following that in which the notice is given;
(ii) in respect of other Australian tax, for the year of income beginning on 1 July in the calendar year next following that in which the notice is given, and subsequent years of income;
(b) in France-
(i) for withholding tax and prepayment (précompte) relating to any amounts payable on or after 1 July in the calendar year next following that in which the notice is given;
(ii) in respect of other French tax for the assessment year next following the calendar year in which the notice is given, and subsequent years.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.
DONE in duplicate at Canberra this Thirteenth day of April One thousand nine hundred and seventy-six in the English and French languages, both texts being equally authoritative.
PHILLIP R. LYNCH
For the Government of AustraliaRAYMOND BARRE
For the Government of the French Republic
Sch 11 inserted by No 52 of 1976.
Section 3
History
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:; and
"(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;"
(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:; and
"(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."
(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:; and
"(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."
(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 AUSTRALIAE. AVICE
FOR THE GOVERNMENT OF THE FRENCH REPUBLIC
(Repealed by No 45 of 2011)
History
Sch 12 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Greek Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 12 formerly read:
SCHEDULE 12 - Greek Agreement
Section 3
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE HELLENIC REPUBLIC FOR THE AVOIDANCE OF DOUBLE TAXATION OF INCOME DERIVED FROM INTERNATIONAL AIR TRANSPORT
ARTICLE 1
(1)
The existing taxes to which this Agreement applies are-
(a) the Australian income tax, including the additional tax upon the undistributed amount of the distributable income of a private company, (hereinafter referred to as "Australian tax");
(b) the Greek income tax including the income tax on legal entities as well as the contribution for Agricultural Insurance Organisation, (hereinafter referred to as "Greek 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.
ARTICLE 2
(1)
In this Agreement, unless the context otherwise requires-
(a) the term "Australia" includes all Territories of or under the authority of Australia except the Territory of Papua New Guinea;
(b) the term "Greece" means the territory of the Hellenic Republic;
(c) the terms "Contracting State" and "other Contracting State" mean Australia or Greece, as the context requires;
(d) the term "Australian enterprise" means an enterprise that has its place of effective management in Australia;
(e) the term "Greek enterprise" means an enterprise that has its place of effective management in Greece;
(f) the term "enterprise of a Contracting State" means an Australian enterprise or a Greek enterprise, as the context requires;
(g) the term "tax" means Australian tax or Greek tax, as the context requires;
(h) the term "operation of aircraft in international traffic" means the operation of aircraft in the carriage of persons, livestock, goods or mail between-
(i) Australia and Greece;
(ii) Australia and any other country;
(iii) Greece and any other country;
(iv) countries other than Australia or Greece; and
(v) places within a country other than Australia or Greece,
and, in relation to an enterprise engaged in the operation of aircraft for such carriage, includes the sale of tickets for such carriage and the provision of services in connection with the loading or unloading of aircraft engaged in such carriage, either for the enterprise itself or for any other enterprise engaged in the operation of aircraft for such carriage.
(2)
In the application of the provisions of this Agreement by one of the Contracting States, any term used but not defined herein shall, unless the context otherwise requires, have the meaning which it has under the laws in force in that Contracting State relating to the taxes to which this Agreement applies.
ARTICLE 3
(1)
Profits derived by an enterprise of a Contracting State from the operation of aircraft in international traffic or arising from the carriage by air of persons, livestock, goods or mail between places in that Contracting State, shall be exempt from tax in the other Contracting State.
(2)
The exemption provided in paragraph (1) of this Article shall also apply to a share of the profits from the operation of aircraft in international traffic derived by an enterprise of a Contracting State through participation in a pooled service, in a joint air transport operation or in an international operating agency.
ARTICLE 4
This Agreement shall enter into force on the fourteenth day after the date on which each Contracting State shall have received from the other Contracting State written notification that it has complied with all statutory and constitutional requirements for the entry into force of the Agreement, and the provisions of the Agreement shall have effect-
(a) as regards Australian tax, in respect of income derived from the first day of March 1972 and thereafter;
(b) as regards Greek tax, in respect of income derived from the first day of April 1972 and thereafter.ARTICLE 5
This Agreement shall continue in effect indefinitely but either Contracting State may, on or before the thirtieth day of June in any calendar year after the year 1978, give notice of termination to the other Contracting State and in that event this Agreement shall cease to be effective-
(a) as regards Australian tax, in respect of income derived from the first day of March in the calendar year next following that in which the notice of termination is given and thereafter; and
(b) as regards Greek tax, in respect of income derived from the first day of April in the calendar year next following the year in which notice of termination is given and thereafter.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.
DONE in duplicate at Canberra the fifth day of May, One thousand nine hundred and seventy-seven in the English and Greek languages, both texts being equally authoritative.
PHILLIP LYNCH
FOR THE GOVERNMENT OF AUSTRALIAC. TRICOUPIS
FOR THE GOVERNMENT OF THE HELLENIC REPUBLIC
Sch 12 inserted by No 134 of 1977.
(Repealed by No 45 of 2011)
History
Sch 13 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Belgian Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 13 formerly read:
SCHEDULE 13 - Belgian Agreement
Section 3
AGREEMENT BETWEEN AUSTRALIA AND THE KINGDOM OF BELGIUM FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOMEas amended by Sch 13A - the Belgian protocol
CHAPTER I SCOPE OF THE AGREEMENT
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States. ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Agreement shall apply are-
(a) in Australia:
the Commonwealth income tax, including the additional tax upon the undistributed amount of the distributable income of a private company;
(b) in Belgium:
the individual income tax (impôt des personnes physiques - personenbelasting);
the corporate income tax (impôt des sociétes - vennootschapsbelasting);
the income tax on legal entities (impôt des personnes morales - rechtspersonenbelasting);
the income tax on non-residents (impôt des non-residents - belasting der niet- verblijfhouders);
including the prepayments, the surcharges on these taxes and prepayments, and the communal supplement to the individual income tax.
(2)
This Agreement shall also apply to any identical or substantially similar taxes which are imposed by one of the Contracting States after the date of signature of this Agreement in addition to, or in place of, the existing taxes. At the end of each calendar year, the competent authority of each Contracting State shall notify the competent authority of the other Contracting State of any substantial changes which have been made in the laws of his State relating to the taxes to which this Agreement applies.CHAPTER II DEFINITIONS
ARTICLE 3 General Definitions
(1)
In this Agreement, unless the context otherwise requires-
(a) the term "Australia" means the Commonwealth of Australia and, when used in a geographical sense, includes-
(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 Coral Sea Islands Territory; and
(vi) any area adjacent to the territorial limits of Australia or of the said Territories in respect of which there is for the time being in force, consistently with international law, a law of Australia or of a State or part of Australia or of a Territory aforesaid dealing with the exploitation of any of the natural resources of the seabed and subsoil of the continental shelf;
(b) the term "Belgium" means the Kingdom of Belgium and, when used in a geographical sense, means the territory of the Kingdom of Belgium and includes any territory outside the national sovereignty of Belgium which in accordance with international law has been or may hereafter be designated, under the laws of Belgium concerning the continental shelf, as an area within which the rights of Belgium with respect to the seabed and the subsoil and their natural resources may be exercised;
(c) the terms "Contracting State, one of the Contracting States" and "other Contracting State" mean Australia or Belgium, as the context requires;
(d) the term "person" means an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is assimilated to a body corporate for tax purposes in the Contracting State of which it is a resident;
(f) the term "tax" means Australian tax or Belgian tax, as the context requires;
(g) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(h) the term "Belgian tax" means tax imposed by Belgium, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or his authorized representative, and in the case of Belgium, the Minister of Finance or his authorized representative;
(j) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Belgium, as the context requires;
(k) words in the singular include the plural and words in the plural include the singular.
(2)
In this Agreement, the terms "Australian tax" and "Belgian tax" do not include any charge imposed as a penalty under the law of either Contracting State relating to the taxes to which this Agreement applies by virtue of Article 2.
(3)
In the application of this Agreement by a Contracting State, any term not otherwise defined shall, unless the context otherwise requires, have the meaning which it has under the laws of that Contracting State relating to the taxes to which this Agreement applies.
ARTICLE 4 Residence
(1)
For the purposes of this Agreement, a person is a resident of one of the Contracting States-
(a) in the case of Australia, subject to paragraph (2), if the person is a resident of Australia for the purposes of Australian tax; and
(b) in the case of Belgium, if the person is a resident of Belgium for the purposes of Belgian tax.
(2)
In relation to income from sources in Belgium, a person who is subject to Australian tax on income which is from sources in Australia shall not be treated as a resident of Australia unless the income from sources in Belgium is subject to Australian tax or, if that income is exempt from Australian tax, it is so exempt solely because it is subject to Belgian tax.
(3)
Where by reason of the provisions of paragraph (1) an individual is a resident of both Contracting States, then his status shall be determined in accordance with the following rules:
(a) he shall be deemed to be a resident solely of the Contracting State in which he has a permanent home available to him;
(b) if he has a permanent home available to him in both Contracting States, or if he does not have a permanent home available to him in either of them, he shall be deemed to be a resident solely of the Contracting State in which he has an habitual abode;
(c) if he has an habitual abode in both Contracting States, or if he does not have an habitual abode in either of them, he shall be deemed to be a resident solely of the Contracting State with which his personal and economic relations are the closer.
(4)
Where by reason of the provisions of paragraph (1) a personother than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business in which the business of the enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially-
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, quarry or other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property;
(h) a building site or construction, installation or assembly project which exists for more than twelve months.
(3)
An enterprise shall not be deemed to have a permanent establishment merely by reason of-
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising, scientific research or the supply of information.
(4)
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if-
(a) it carries on supervisory activities in that State for more than twelve months in connection with a building site, or a construction, installation or assembly project which is being undertaken in that State; or
(b) substantial equipment is being used in that State for more than twelve months by, for or under contract with the enterprise in exploration for, or the exploitation of, natural resources, or in activities connected with such exploration or exploitation.
(5)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (6) applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if-
(a) he has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless his activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting he manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise, provided that this provision shall apply only in relation to the goods or merchandise so manufactured or processed.
(6)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of his business as such a broker or agent.
(7)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise) shall not of itself make either company a permanent establishment of the other.
(8)
The principles set forth in paragraphs (1) to (7) inclusive shall be applied in determining for the purposes of this Agreement whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
CHAPTER III TAXATION OF INCOME
ARTICLE 6 Income from Real Property
(1)
Income from real property, including royalties and other payments in respect of the operation of mines or quarries or the exploitation of any natural resource, may be taxed in the Contracting State in which the real property, mines, quarries, or natural resources are situated.
(2)
Income from a lease of land and income from any other direct interest in or over land, whether or not improved, shall be regarded as income from real property situated in the Contracting State in which the land is situated.
(3)
Ships, boats or aircraft shall not be regarded as real property.
(4)
The provisions of paragraph (1) shall also apply to the income from real property of an enterprise and to the income from real property used for the performance of professional services.
ARTICLE 7 Business profits
(1)
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State, but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph (3), where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions, expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
If the information available to the competent authority of a Contracting State is inadequate to determine the profits to be attributed to the permanent establishment of an enterprise, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person, provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
(6)
For the purposes of this Article, except as provided in the Articles referred to in this paragraph, the profits of an enterprise do not include items of income dealt with in Articles 6, 8, 10, 11, 12, 14, 16 and 17 and in paragraph (1) of Article 13.
(7)
Notwithstanding the provisions of this Article, profits of an enterprise of one of the Contracting States from carrying on a business of any form of insurance, other than life insurance, may be taxed in the other Contracting State according to the law of that State, provided that if the law in force at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting Governments shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(8)
(Deleted by Sch 13A - Belgian protocol)
(9)
(Deleted by Sch 13A - Belgian protocol)
ARTICLE 8 Shipping and Air Transport
(1)
Profits from the operation of ships or aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1), such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
(3)
The provisions of paragraphs (1) and (2) shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of a Contracting State through participation in a pool service, in a joint transport operating organization or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to the places in that State.
(5)
The amount which shall be charged to tax in one of the Contracting States as profits from operations of ships or aircraft in respect of which a resident of the other Contracting State may be taxed in the first-mentioned State under paragraph (2) or (3) shall not exceed 5 per cent of the amount paid or payable (net of rebates) in respect of carriage in such operations.
(6)
Paragraph (5) shall not apply to profits derived from the operation of ships or aircraft by a resident of one of the Contracting States whose principal place of business is in the other Contracting State, nor shall it apply to profits derived from the operation of ships or aircraft by a resident of a Contracting State if those profits are derived otherwise than from the carriage of passengers, livestock, mail, goods or merchandise.
ARTICLE 9 Associated Enterprise
(1)
Where-
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, butfor those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
If the information available to the competent authority of a Contracting State is inadequate to determine the profits to be attributed to an enterprise, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person, provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of paragraph (1).HistoryArt 9(2) amended by Sch 13A (the Belgian protocol).
(3)
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph (1) or (2), in the profits of an enterprise of the other Contracting State and taxed accordingly, and the profits so included are profits which might have been expected to have accrued to the enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned State shall make such adjustment as it considers appropriate to the amount of tax charged on those profits in the first-mentioned State. In determining any adjustment, due regard shall be had to the other provisions of this Agreement, and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
(4)
Notwithstanding the provisions of this Article, an enterprise of one of the Contracting States may be taxed by that State as if this Article had not come into effect but, so far as it is practicable to do so, in accordance with the principles of paragraph (1).HistoryArt 9(4) inserted by Sch 13A (the Belgian protocol).
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends. This paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.
(3)
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the taxation law of the Contracting State of which the company making the distribution is a resident. In the case of Belgium, the term includes income, even when paid in the form of interest, which is taxable under the head of income from capital invested by the members of a company which is a resident of Belgium for the purposes of its tax and is not a company with share capital.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business through a permanent establishment situated in the other Contracting State, being the State of which the company paying the dividends is a resident, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment. In such a case, the provisions of Article 7 shall apply.
(5)
Dividends paid by a company which is a resident of Belgium, being dividends to which a person who is not a resident of Australia is beneficially entitled, shall be exempt from tax in Australia except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment situated in Australia. Provided that this paragraph shall not apply in relation to dividends paid by any company which is a resident of Belgium for the purposes of Belgian tax and which is also a resident of Australia for the purposes of Australian tax.
(6)
Nothing in this Agreement shall be construed as preventing one of the Contracting States from imposing on the profits of a company which is a resident of the other Contracting State tax in addition to or at a higher rate than the tax which would be imposed on the profits of a company which is a resident of the first-mentioned State. However, if the provisions of the law in force in either Contracting State which relate to such additional tax or such higher rate are varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to such amendments to this Article as may be appropriate.HistoryArt 10(6) inserted by Sch 13A (the Belgian protocol).
ARTICLE 11 Interest
(1)
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in the debtor's profits, and interest from any other form of indebtedness as well as all other income assimilated to interest by the taxation law of the Contracting State in which the income arises. The term does not include income which is paid in the form of interest but which is, in accordance with paragraph (3) of Article 10, to be treated as dividends.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business through a permanent establishment situated in the other Contracting State, being the State in which the interest arises, and the indebtedness giving rise to the interest is effectively connected with that permanent establishment. In such a case, the provisions of Article 7 shall apply.
(5)
Interest shall be deemed to arise in a Contracting State when the payer is that Contracting State itself or a political subdivision of that State or a local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however-
(a) the person paying the interest is a resident of one of the Contracting States and has in the other State or outside both States a permanent establishment in connection with which the indebtedness on which the interest is paid was incurred and the interest is borne by the permanent establishment, then the interest shall be deemed to arise in the State where the permanent establishment is situated;
(b) the person paying the interest is not a resident of either of the Contracting States but has in one of the States a permanent establishment in connection with which the indebtedness on which the interest is paid was incurred and the interest is borne by the permanent establishment, then the interest shall be deemed to arise in the State where the permanent establishment is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid may be taxed in the Contracting State in which the interest arises according to the law of that State.
ARTICLE 12 Royalties
(1)
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
(3)
The term "royalties" in this Article means payments (including credits), whether periodical or not, and however described or computed, to the extent to which they are made as consideration for the use of, or the right to use, any copyright, patent, design or model, plan, secret formula or process, trade-mark or other like property or right, or industrial, commercial or scientific equipment, or for the supply of scientific, technical, industrial or commercial knowledge or information, or for the supply of any assistance of an ancillary or subsidiary nature furnished as a means of enabling the application or enjoyment of such knowledge or information or any other property or right to which this Article applies, and includes any payments (including credits) to the extent to which they are made as consideration for the use of, or the right to use, motion picture films, films or video tapes for use in connection with television or tapes for use in connection with radio broadcasting, or for total or partial forbearance in respect of the use or supply of a property or right referred to in this paragraph.HistoryArt 12(3) substituted by Sch 13A (the Belgian protocol).
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business through a permanent establishment situated in the other Contracting State, being the State in which the royalties arise, and the asset giving rise to the royalties is effectively connected with that permanent establishment. In such a case, the provisions of Article 7 shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is that Contracting State itself or a political subdivision of that State or a local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however-
(a) the person paying the royalties is a resident of one of the Contracting States and has in the other State or outside both States a permanent establishment in connection with which the liability to pay the royalties was incurred and the royalties are borne by the permanent establishment, then the royalties shall be deemed to arise in the State where the permanent establishment is situated;
(b) the person paying the royalties is not a resident of either of the Contracting States but has in one of the States a permanent establishment in connection with which the liability to pay the royalties was incurred and the royalties are borne by the permanent establishment, then the royalties shall be deemed to arise in the State where the permanent establishment is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties or between both of them and some other person, the amount of the royalties paid, having regard to what they are paid for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid may be taxed in the Contracting State in which the royalties arise according to the law of that State.
ARTICLE 13 Alienation of Property
(1)
Income from the alienation of real property may be taxed in the Contracting State in which that property is situated.
(2)
For the purposes of this Article-
(a) the term "real property" shall include-
(i) a lease of land or any other direct interest in or over land;
(ii) rights to exploit, or to explore for, natural resources; and
(iii) shares or comparable interests in a company, the assets of which consist wholly or principally of direct interests in or over land in one of the Contracting States or of rights to exploit, or to explore for, natural resources in one of the Contracting States;
(b) real property shall be deemed to be situated-
(i) where it consists of direct interests in or over land - in the Contracting State in which the land is situated;
(ii) where it consists of rights to exploit, or to explore for, natural resources - in the Contracting State in which the natural resources are situated or the exploration may take place; and
(iii) where it consists of shares or comparable interests in a company, the assets of which consist wholly or principally of direct interests in or over land in one of the Contracting States or of rights to exploit, or to explore for, natural resources in one of the Contracting States - in the Contracting State in which the assets or the principal assets of the company are situated.
(3)
Subject to the provisions of paragraph (1), income from the alienation of capital assets of an enterprise of a Contracting State shall be taxable only in that Contracting State, but, where those assets form part of the business property of a permanent establishment situated in the other Contracting State, such income may be taxed in that other State.
ARTICLE 14 Independent Personal Services
(1)
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base.
(2)
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 18, 19 and 20, salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, the remuneration derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if-
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the year of income or in the taxable period, as the case may be, of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that Contracting State.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a resident of one of the Contracting States in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State. In relation to remuneration of a director of a company derived from the company in respect of the discharge of day-to-day functions of a managerial or technical nature, the provisions of Article 15 shall apply as if the remuneration were remuneration of an employee in respect of an employment and as if references to "employer" were references to the company. ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes, and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
(2)
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
ARTICLE 18 Pensions and Annuities
(1)
Pensions, other than pensions to which Article 19 applies, and annuities paid to a resident of one of the Contracting States shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
ARTICLE 19 Government Service
(1)
Remuneration, other than a pension, paid to an individual in respect of services rendered in the discharge of governmental functions to one of the Contracting States or to a political sub-division of one of the Contracting States or to a local authority of one of the Contracting States shall be taxable only in that State. Such remuneration shall, however, be taxable only in the other Contracting State if the services are rendered in that State and the recipient is a resident of that State who-
(a) is a citizen or national of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
(2)
Any pension paid to an individual in respect of services rendered in the discharge of governmental functions to one of the Contracting States or to a political sub-division of one of the Contracting States or to a local authority of one of the Contracting States shall be taxable only in that State. Such pension shall, however, be taxable only in the other Contracting State if the recipient is a citizen or national of that State and a resident of that State.
(3)
The provisions of Articles 15, 16 and 18 shall apply to remuneration, including pensions, paid in respect of services rendered in connection with any business carried on by one of the Contracting States or by a political sub-division of one of the Contracting States or by a local authority of one of the Contracting States.
ARTICLE 20 Professors and Teachers
(1)
Salaries, wages and other similar remuneration which a professor or teacher who is a resident of one of the Contracting States and who visits the other Contracting State for a period not exceeding two years for the purpose of teaching or carrying out advanced study or research at a university, college, school or other recognized educational institution, receives for those activities shall be taxable only in the first-mentioned State.
(2)
This Article shall not apply to remuneration which a professor or teacher receives for conducting research, if the research is undertaken primarily for the private benefit of a specific person or persons.
ARTICLE 21 Students
Where a student, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in the other State solely for the purpose of his education, receives payments from sources outside the other State for the purpose of his maintenance or education, those payments shall be exempt from tax in the other State. ARTICLE 22 Income of Dual Resident
Where a person, who by reason of the provisions of paragraph (1) of Article 4 is a resident of both Contracting States but by reason of the provisions of paragraph (3) or (4) of that Article is deemed for the purposes of this Agreement to be a resident solely of one of the Contracting States, derives income from sources in that Contracting State or from sources outside both Contracting States, that income shall be taxable only in that Contracting State. ARTICLE 23 Source of Income
(1)
Income derived by a resident of Belgium which, under any one or more of Articles 6 to 8 and 10 to 17 may be taxed in Australia, shall for the purposes of the income tax law of Australia be deemed to be income from sources in Australia.
(2)
Income derived by a resident of Australia which, under any one or more of Articles 6 to 8 and 10 to 17 may be taxed in Belgium, shall for the purposes of paragraph (1) of Article 24 and of the income tax law of Australia be deemed to be income from sources in Belgium.
CHAPTER IV METHODS OF ELIMINATION OF DOUBLE TAXATION
ARTICLE 24
(1)
In the case of Australia, double taxation shall be avoided as follows:
(a) Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Belgian tax paid, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Belgium (not including, in the case of a dividend, tax paid in respect of the profits out of which the dividend is paid) shall be allowed as a credit against Australian tax payable in respect of that income.
(b) In the event that Australia should cease to allow a company which is a resident of Australia a rebate in its assessment at the average rate of tax payable by the company in respect of dividends derived from sources in Belgium and included in the taxable income of the company, the Contracting Governments will enter into negotiations in order to establish new provisions concerning the credit to be allowed by Australia against its tax on the dividends.
(2)
In the case of Belgium, double taxation shall be avoided as follows:
(a) Where a resident of Belgium derives income which may be taxed in Australia in accordance with this Agreement and which is not subject to the provisions of subparagraph (b) or (c) below, Belgium shall exempt such income from tax but may, in calculating the amount of tax on the remaining income of that resident, apply the rate of tax which would have been applicable if such income had not been exempted.
(b) In the case of-
(i) dividends taxable in accordance with paragraph (2) of Article 10, and not exempt from Belgian tax according to subparagraph (c) below;
(ii) interest taxable in accordance with paragraph (2) or (6) of Article 11; and
(iii) royalties taxable in accordance with paragraph (2) or (6) of Article 12, there shall be allowed as a credit against Belgian tax relating to such income the fixed proportion in respect of foreign tax for which provision is made under Belgian law, under the conditions and at the rate fixed by such law, provided that this rate shall not be less than the rate of tax which may be levied in Australia in accordance with paragraph (2) of Article 10, paragraph (2) of Article 11 or paragraph (2) of Article 12.
(c) Where a company which is a resident of Belgium owns shares in a company with share capital which is a resident of Australia and which is subject to Australian tax on its profits, the dividends which are paid to it by the latter company and which may be taxed in Australia in accordance with paragraph (2) of Article 10 shall be exempt from the corporate income tax in Belgium to the extent that exemption would have been accorded if the two companies had been residents of Belgium.
(d) Where, in accordance with Belgian law, losses of an enterprise carried on by a resident of Belgium which are attributable to a permanent establishment situated in Australia have been effectively deducted from the profits of that enterprise for its taxation in Belgium, the exemption provided in subparagraph (a) of this paragraph shall not apply in Belgium to the profits of other taxable periods attributable to that establishment to the extent that those profits have also been freed from tax in Australia by reason of a deduction for the said losses.
CHAPTER V SPECIAL PROVISIONS
ARTICLE 25 Mutual Agreement Procedure
(1)
Where a resident of a Contracting State considers that the actions of the competent authority of one or both of the Contracting States result or will result for him in taxation not in accordance with this Agreement, he may, notwithstanding the remedies provided by the national laws of those States, present his case to the competent authority of the Contracting State of which he is a resident. The case must be presented within three years from the first notification of the action giving rise to taxation not in accordance with this Agreement.
(2)
The competent authority shall endeavour, if the taxpayer's claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement.
(3)
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the application of this Agreement.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 26 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the domestic laws of the Contracting States concerning the taxes to which this Agreement applies insofar as the taxation thereunder is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used by that competent authority only for such purposes.
(2)
In no case shall the provisions of paragraph (1) be construed so as to impose on a Contracting State the obligation-
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 27 Miscellaneous
(1)
With respect to a company which is a resident of Belgium for the purposes of Belgian tax, the provisions of this Agreement shall not limit the taxation of that company in accordance with the Belgian law in the event of the repurchase by the company of its own shares or in the event of the distribution of its assets.
(2)
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special international Agreements.
CHAPTER VI FINAL PROVISIONS
ARTICLE 28 Entry Into Force
This Agreement shall come into force on the fifteenth day after the date on which the Government of Australia and the Government of the Kingdom of Belgium exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in Belgium respectively, and thereupon this Agreement shall have effect-
(a) in Australia-
(i) with respect to withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year immediately following that in which the Agreement enters into force;
(ii) with respect to other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year immediately following that in which the Agreement enters into force;
(b) in Belgium-
(i) with respect to all tax due at source, on income credited or payable on or after 1 January in the calendar year immediately following that in which the Agreement enters into force;ARTICLE 29 Termination
(ii) with respect to all tax other than tax due at source, on income of any accounting period beginning on or after 1 January in the calendar year immediately following that in which the Agreement enters into force.
This Agreement shall continue in effect indefinitely, but the Government of Australia or the Government of the Kingdom of Belgium may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Government through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective-
(a) in Australia-
(i) with respect to withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year immediately following that in which the notice of termination is given;
(ii) with respect to other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year immediately following that in which the notice of termination is given;
(b) in Belgium-
(i) with respect to all tax due at source, on income credited or payable on or after 1 January in the calendar year immediately following that in which the notice of termination is given;
(ii) with respect to all tax other than tax due at source, on income of any accounting period beginning on or after 1 January in the calendar year immediately following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorized thereto, have signed this Agreement.
DONE in duplicate at Canberra this thirteenth day of October, One thousand nine hundred and seventy-seven in the English, French and Dutch languages, the three texts being equally authentic.
PHILLIP R. LYNCH
FOR THE GOVERNMENT OF AUSTRALIAGEORGES BARTHELEMY
FOR THE GOVERNMENT OF THE KINGDOM OF BELGIUM
Sch 13 inserted by No 134 of 1977.
(Repealed by No 45 of 2011)
History
Sch 13A repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Protocol to Belgian Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 13A formerly read:
SCHEDULE 13A - Protocol to Belgian Agreement
Section 3
PROTOCOL AMENDING THE AGREEMENT BETWEEN AUSTRALIA AND THE KINGDOM OF BELGIUM FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME SIGNED AT CANBERRA ON 13 OCTOBER 1977
ARTICLE I
Article 7 of the Agreement shall be amended by deleting paragraphs (8) and (9).ARTICLE II
Article 9 of the Agreement shall be amended by:
(a) deleting from paragraph (2) "of this Article" and substituting "of paragraph (1)"; and
(b) adding at the end thereof the following paragraph:
"(4) Notwithstanding the provisions of this Article, an enterprise of one of the Contracting States may be taxed by that State as if this Article had not come into effect but, so far as it is practicable to do so, in accordance with the principles of paragraph (1)."ARTICLE III
Article 10 of the Agreement shall be amended by adding at the end thereof the following paragraph:
"(6) Nothing in this Agreement shall be construed as preventing one of the Contracting States from imposing on the profits of a company which is a resident of the other Contracting State tax in addition to or at a higher rate than the tax which would be imposed on the profits of a company which is a resident of the first-mentioned State. However, if the provisions of the law in force in either Contracting State which relate to such additional tax or such higher rate are varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to such amendments to this Article as may be appropriate."ARTICLE IV
Article 12 of the Agreement shall be amended by omitting paragraph (3) and substituting the following paragraph:
"(3) The term 'royalties' in this Article means payments (including credits), whether periodical or not, and however described or computed, to the extent to which they are made as consideration for the use of, or the right to use, any copyright, patent, design or model, plan, secret formula or process, trade-mark or other like property or right, or industrial, commercial or scientific equipment, or for the supply of scientific, technical, industrial or commercial knowledge or information, or for the supply of any assistance of an ancillary or subsidiary nature furnished as a means of enabling the application or enjoyment of such knowledge or information or any other property or right to which this Article applies, and includes any payments (including credits) to the extent to which they are made as consideration for the use of, or the right to use, motion picture films, films or video tapes for use in connection with television or tapes for use in connection with radio broadcasting, or for total or partial forbearance in respect of the use or supply of a property or right referred to in this paragraph."ARTICLE V
This Protocol, which shall form an integral part of the Agreement, shall enter into force on the fifteenth day after the date on which the Contracting States exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Protocol the force of law in Australia and in Belgium respectively, and thereupon this Protocol shall have effect:
(a) in Australia, in relation to income of any year of income beginning on or after 1 July in the calendar year immediately following that in which the Protocol enters into force;
(b) in Belgium, on income of any accounting period beginning on or after 1 January in the calendar year immediately following that in which the Protocol enters into force.IN WITNESS WHEREOF the undersigned, duly authorized thereto, have signed this Protocol.
DONE in duplicate at Canberra this twentieth day of March One thousand nine hundred and eighty-four in the English, French and Dutch languages, the three texts being equally authentic.
PAUL KEATING
FOR AUSTRALIAA. DOMUS
FOR THE KINGDOM OF BELGIUM
Sch 13A inserted by No 125 of 1984. The Belgian Protocol entered into force on 20 September 1986.
(Repealed by No 45 of 2011)
History
Sch 13B repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Second Belgian Protocol from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 13B formerly read:
SCHEDULE 13B - The Second Belgian Protocol
[ CCH Note: Sch 13B inserted by No 13 of 2010, s 3 and Sch 1 item 19, effective 11 March 2010. The Protocol has not yet come into force, see Art II for rules concerning entry into force. The new Protocol reads:
Schedule 13B - The Second Belgian Protocol
Note: See section 3.
SECOND PROTOCOL AMENDING THE AGREEMENT BETWEEN AUSTRALIA AND THE KINGDOM OF BELGIUM FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME SIGNED AT CANBERRA ON 13 OCTOBER 1977 AS AMENDED BY THE PROTOCOL SIGNED AT CANBERRA ON 20 MARCH 1984
ARTICLE I
The text of Article 26 of the Agreement is deleted and replaced by the following:
"1.
The competent authorities of the Contracting States shall exchange such information as is foreseeably relevant for carrying out the provisions of this Agreement or to the administration or enforcement of the domestic laws concerning taxes of every kind and description imposed by or on behalf of the Contracting States, insofar as the taxation there under is not contrary to the Agreement. The exchange of information is not restricted by Articles 1 and 2.
2.
Any information received under paragraph 1 by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to the taxes referred to in paragraph 1, or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions. Notwithstanding the foregoing, information received by a Contracting State may be used for other purposes when such information may be used for such other purposes under the laws of both States and the competent authority of the supplying State authorises such use.
3.
In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;
(b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public).
4.
If information is requested by a Contracting State in accordance with the provisions of this Article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other State may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 of this Article but in no case shall such limitations be construed to permit a Contracting State to decline to supply information solely because it has no domestic interest in such information.
5.
In no case shall the provisions of paragraph 3 of this Article be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, trust, foundation, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person. To the extent necessary to obtain such information, the tax administration of the requested Contracting State shall have the power to require the disclosure of information and to conduct investigations and hearings notwithstanding any contrary provisions in its domestic tax laws."ARTICLE II
1.
Each of the Contracting States shall notify the other Contracting State, through diplomatic channels, of the completion of the procedures required byits law for the bringing into force of this Protocol. The Protocol shall enter into force on the date of the later of these notifications and its provisions shall have effect:
a) with respect to taxes due at source on income credited or payable on or after 1 January 2010;
b) with respect to other taxes charged on income of taxable periods beginning on or after 1 January 2010;
c) with respect to any other taxes imposed by or on behalf of the Contracting States, on any other tax due in respect of taxable events taking place on or after 1 January 2010.
2.
Notwithstanding paragraph 1, the provisions of Article 26 (Exchange of Information) shall have effect with respect to criminal tax matters from the date of entry into force of the Protocol, without regard to the taxable period to which the matter relates.The term "criminal tax matters" means tax matters involving intentional conduct which is liable to prosecution under the criminal laws of the requesting State.
ARTICLE III
This Protocol, which shall form an integral part of the Agreement, shall remain in force as long as the Agreement remains in force and shall apply as long as the Agreement itself is applicable.
IN WITNESS WHEREOF, the undersigned duly authorized thereto by their respective governments, have signed this Protocol.
DONE in duplicate at Paris, on this 24th day of June 2009 in the English language.
FOR THE GOVERNMENT OF
AUSTRALIA:FOR THE GOVERNMENT OF
THE KINGDOM OF BELGIUM:The Hon. Simon Crean H.E. Didier Reynders Minister for Trade Minister for Finance]
(Repealed by No 45 of 2011)
History
Sch 14 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Philippine Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 14 formerly read:
SCHEDULE 14 - Philippine Agreement
Section 3
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPINES FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
CHAPTER I SCOPE OF THE AGREEMENT
ARTICLE 1 Personal Scope
(1)
This Agreement shall apply to persons who are residents of one or both of the Contracting States.
(2)
However, nothing in this Agreement shall prevent the Philippines from taxing its own citizens, who are not residents of the Philippines, in accordance with Philippine law.
ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Agreement shall apply are-
(a) in Australia:
the Australian income tax, including the additional tax upon the undistributed amount of the distributable income of a private company;
(b) in the Philippines:
the income taxes imposed by the Government of the Republic of the Philippines.
(2)
This Agreement shall also apply to any identical or substantially similar taxes which are imposed by either Contracting State after the date of signature of this Agreement in addition to, or in place of, the existing taxes. At the end of each calendar year, the competent authority of each Contracting State shall notify the competent authority of the other Contracting State of any substantial changes which have been made in the laws of his State relating to the taxes to which this Agreement applies.
CHAPTER II DEFINITIONS
ARTICLE 3 General Definitions
(1)
In this Agreement,unless the context otherwise requires-
(a) the term "Australia" means the Commonwealth of Australia and, when used in a geographical sense, includes-
(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 Coral Sea Islands Territory; and
(vi) any area adjacent to the territorial limits of Australia or of the said Territories in respect of which there is for the time being in force a law of Australia or of a State or part of Australia or of a Territory aforesaid dealing with the exploitation of any of the natural resources of the sea-bed and subsoil of the continental shelf;
(b) the term "Philippines" means the Republic of the Philippines and when used in a geographical sense means the national territory comprising the Republic of the Philippines;
(c) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" mean Australia or the Philippines, as the context requires;
(d) the term "person" means an individual, an estate, a trust, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is treated as a company or a body corporate for tax purposes;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of the Philippines, as the context requires;
(g) the term "tax" means Australian tax or Philippine tax, as the context requires;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "Philippine tax" means tax imposed by the Philippines, being tax to which this Agreement applies by virtue of Article 2;
(j) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or his authorized representative, and, in the case of the Philippines, the Minister of Finance or his authorized representative;
(k) the term "international traffic", in relation to the operation of ships or aircraft by a resident of one of the Contracting States, means operations of ships or aircraft other than operations of ships or aircraft confined solely to places in the other Contracting State.
(2)
In this Agreement, the terms "Australian tax" and "Philippine tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes to which this Agreement applies by virtue of Article 2.
(3)
For the purposes of this Agreement, the carriage of passengers, livestock, mail, goods or merchandise shipped in one of the Contracting States for discharge at another place in that State shall be treated as operations of ships or aircraft confined solely to places in that State.
(4)
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that Contracting State relating to the taxes to which this Agreement applies.
ARTICLE 4 Residence
(1)
For the purposes of this Agreement, a person is a resident of one of the Contracting States-
(a) in the case of Australia, subject to paragraph (2), if the person is a resident of Australia for the purposes of Australian tax;
(b) in the case of the Philippines-
(i) if the person is a company or an entity which is incorporated, created or organized in the Philippines or under its laws and is treated as a body corporate for purposes of Philippine tax;
(ii) if the person, not being a company or an entity treated as a company or body corporate for the purposes of Philippine tax, is a resident of the Philippines for the purposes of Philippine tax.
(2)
In relation to income from sources in the Philippines, a person who is subject to Australian tax on income which is from sources in Australia shall not be treated as a resident of Australia unless the income from sources in the Philippines is subject to Australian tax or, if that income is exempt from Australian tax, it is so exempt solely because it is subject to Philippine tax.
(3)
Where by reason of the preceding provisions of this Article an individual is a resident of both Contracting States, then his status shall be determined in accordance with the following rules-
(a) he shall be deemed to be a resident solely of the Contracting State in which he has a permanent home available to him;
(b) if he has a permanent home available to him in both Contracting States, or if he does not have a permanent home available tohim in either of them, he shall be deemed to be a resident solely of the Contracting State with which his personal and economic relations are the closer.
(4)
For the purposes of the last preceding paragraph, an individual's citizenship of a Contracting State shall be a factor in determining the degree of his personal and economic relations with that Contracting State.
(5)
Where by reason of the provisions of paragraph (1), a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which it is incorporated, created or organized.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially-
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, oil or gas well, quarry or other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property;
(h) a building site or construction, installation or assembly project, or supervisory activities in connection therewith where such site, project or activity continues for more than six months;
(i) premises used as a sales outlet;
(j) a warehouse, in relation to a person providing storage facilities for others;
(k) a place in one of the Contracting States through which an enterprise of the other Contracting State furnishes services, including consultancy services, for a period or periods aggregating more than six months in any taxable year or year of income, as the case may be, in relation to a particular project, or to any project connected therewith.
(3)
Notwithstanding the preceding provisions of this Article, an enterprise shall not be deemed to have a permanent establishment merely by reason of-
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(4)
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if substantial equipment is being used in that State for more than six months by, for or under contract with the enterprise.
(5)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (6) applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if-
(a) he has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless his activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) he has no such authority, but habitually maintains on behalf of the enterprise in the first-mentioned State a stock of goods or merchandise from which on behalf of the enterprise he regularly delivers goods or merchandise for use or consumption in that State; or
(c) in so acting, he manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
(6)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of his business as such a broker or agent.However, when the activities of such an agent are devoted wholly or almost wholly on behalf of the enterprise, he shall not be considered to be an agent of independent status within the meaning of this paragraph if it is shown that the transactions between the agent and the enterprise were not made under arms-length conditions. In such a case, the provisions of paragraph (5) shall apply.
(7)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise) shall not of itself make either company a permanent establishment of the other.
CHAPTER III TAXATION OF INCOME
ARTICLE 6 Income from Real Property
(1)
Income from real property may be taxed in the Contracting State in which the real property is situated.
(2)
The term "real property" shall have the meaning which it has under the laws in force in the Contracting State in which the property in question is situated. The term shall in any case include rights to royalties and other payments in respect of the operation of mines, oil or gas wells, or quarries or in respect of the exploitation of any natural resource and those rights shall be regarded as situated where the mines, oil or gas wells, quarries or natural resources are situated. Ships or aircraft shall not be regarded as real property.
(3)
Income from a lease of land and income from any other direct interest in or over land, whether or not improved, shall be regarded as income from real property situated where the land to which the lease or other direct interest relates is situated.
(4)
The provisions of paragraphs (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 professional services.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State, but only so much of them as is attributable to-
(a) that permanent establishment; or
(b) sales within that other Contracting State of goods or merchandise of the same or a similar kind as those sold, or other business activities of the same or a similar kind as those carried on through that permanent establishment if the sale or the business activities had been made or carried on in that way with a view to avoiding taxation in that other State.
(2)
Subject to the provisions of paragraph (3), where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
If the information available to the competent authority of a Contracting State is inadequate to determine the profits to be attributed to the permanent establishment of an enterprise, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
(6)
For the purposes of this Article, the profits of an enterprise do not include income from the operation of aircraft in international traffic and, except as provided in the Articles referred to in this paragraph, do not include items of income dealt with in Articles 6, 8, 10, 11, 12, 13, 14, 16 and 17.
(7)
The profits of an enterprise of one of the Contracting States from the carrying on in the other Contracting State of a business of any form of insurance other than life insurance may be taxed in the other Contracting State in accordance with the law of that other State relating specifically to the taxation of any person who carries on such business, and Article 24 shall apply for the elimination of double taxation as if the profits so taxed were attributable to a permanent establishment of the enterprise in the State imposing the tax.
ARTICLE 8 Shipping
(1)
The tax payable in a Contracting State by a resident of the other Contracting State in respect of profits from the operation of ships in international traffic shall not exceed the lesser of-
(a) one and one-half per cent of the gross revenues derived from sources in that State; and
(b) the lowest rate of Philippine tax that may be imposed on profits of the same kind derived under similar circumstances by a resident of a third State.
(2)
Paragraph (1) shall apply in relation to the share of the profits from the operation of ships derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organization or in an international operating agency.
ARTICLE 9 Associated Enterprises
(1)
Where-
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
If the information available to the competent authority of a Contracting State is inadequate to determine the profits to be attributed to an enterprise, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person, provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
(3)
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph (1) or (2), in the profits of an enterprise of the other Contracting State and taxed accordingly, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the first-mentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement in relation to the nature of the income, and for this purpose the competent authorities of the Contracting States shall, if necessary, consult each other.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall-
(a) in the case of dividends derived by a company, not exceed 15 per cent of the gross amount of the dividends where relief, either by way of rebate or credit as described in paragraph (2) of Article 24 or relief by way of credit as described in the second sentence of paragraph (4) of Article 24, is given to the beneficial owner of the dividends; and
(b) in any other case, not exceed 25 per cent of the gross amount of the dividends.Nothing in this paragraph shall affect the taxation of a company in respect of profits out of which dividends are paid.
(3)
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the taxation law of the Contracting State of which the company making the distribution is a resident.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident through a permanent establishment situated therein or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. Provided that this paragraph shall not apply in relation to dividends paid by a company which is a resident of Australia for the purposes of Australian tax and which is also a resident of the Philippines for the purposes of Philippine tax.
(6)
The Philippines may impose in accordance with its domestic law, apart from the corporate income tax, a tax on remittances of profits by a branch to its Head Office provided that the tax so imposed shall not exceed 15 per cent of the amount remitted.
(7)
Australia may impose an income tax (in this paragraph called a "branch profits tax") on the reduced taxable income of a company that is a resident of the Philippines in addition to the income tax (in this paragraph called "the general income tax") payable by the company in respect of its taxable income; provided that any branch profits tax so imposed in respect of a year of income shall not exceed 15 per cent of the amount by which the reduced taxable income of that year of income exceeds the general income tax payable in respect of the reduced taxable income of that year of income.
ARTICLE 11 Interest
(1)
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the interest.
(3)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures and interest from any other form of indebtedness (whether or not secured by mortgage and whether or not carrying a right to participate in profits) as well as all other income assimilated to interest by the taxation law of the Contracting State in which the income arises.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State in which the interest arises through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the indebtedness giving rise to the interest is effectively connected with that permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision of that State or a local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether he is a resident of one of the Contracting States or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and the interest is borne by the permanent establishment or fixed base, then the interest shall be deemed to arise where the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
(7)
Interest derived by the Government of a Contracting State, or by any other body exercising governmental functions in, or in a part of, a Contracting State, or by a bank performing central banking functions in a Contracting State, shall be exempt from tax in the other Contracting State.
(8)
The Philippine tax on interest arising in the Philippines in respect of public issues of bonds, debentures or similar obligations and paid by a company which is a resident of the Philippines to a resident of Australia shall not exceed 10 per cent of the gross amount of the interest.
(9)
The principles set forth in paragraphs (1) to (7) inclusive of Article 5 shall be applied in determining for the purposes of this Article whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
ARTICLE 12 Royalties
(1)
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such royalties may also be taxed in the Contracting State in which they arise, and according to the law of that State. However, the tax so charged shall not exceed-
(a) 15 per cent of the gross amount of the royalties where the royalties are paid by an enterprise registered with the Philippine Board of Investments and engaged in preferred areas of activities; and
(b) in all other cases, 25 per cent of the gross amount of the royalties.
(3)
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 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 paragraph (a), any such equipment as is mentioned in paragraph (b) or any such knowledge or information as is mentioned in paragraph (c);
(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 of a property or right referred to in this paragraph.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business in the other Contracting State in which the royalties arise through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the asset giving rise to the royalties is effectively connected with that permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is that Contracting State itself or a political sub-division of that State or a local authority of that State or a person who is a resident of that State for purposes of its tax. Where, however, the person paying the royalties, whether he is a resident of one of the Contracting States or not, has in the other Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise where the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties or between both of them and some other person, the amount of the royalties paid, having regard to what they are paid for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
(7)
The principles set forth in paragraphs (1) to (7) inclusive of Article 5 shall be applied in determining for the purposes of this Article whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
ARTICLE 13 Alienation of Property
(1)
Income from the alienation of real property may be taxed in the Contracting State in which that property is situated.
(2)
For the purposes of this Article-
(a) the term "real property" shall have the meaning which it has under the laws in force in the Contracting State in which the property in question is situated and shall include-
(i) a lease of land or any other direct interest in or over land;
(ii) rights to exploit, or to explore for, natural resources; and
(iii) shares or comparable interests in a company, the assets of which consist wholly or principally of direct interests in or over land in one of the Contracting States or of rights to exploit, or to explore for, natural resources in one of the Contracting States;
(b) real property shall be deemed to be situated-
(i) where it consists of direct interests in or over land - in the Contracting State in which the land is situated;
(ii) where it consists of rights to exploit, or to explore for, natural resources - in the Contracting State in which the natural resources are situated or the exploration may take place; and
(iii) where it consists of shares or comparable interests in a company, the assets of which consist wholly or principally of direct interests in or over land in one of the Contracting States or of rights to exploit, or to explore for, natural resources in one of the Contracting States - in the Contracting State in which the assets or the principal assets of the company are situated.
(3)
Subject to the provisions of paragraph (1), income from the alienation of capital assets of an enterprise of one of the Contracting States or available to a resident of one of the Contracting States for the purpose of performing professional services or other independent activities shall be taxable only in that Contracting State, but, where those assets form part of the business property of a permanent establishment or fixed base situated in the other Contracting State, such income may be taxed in that other State.
ARTICLE 14 Independent Personal Services
(1)
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State. However, if such an individual-
(a) has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities; or
(b) in a year of income or taxable year, as the case may be, stays in the other Contracting State for a period or periods aggregating 183 days for the purpose of performing his activities; or
(c) derives, in a year of income or taxable year, as the case may be, from residents of the other Contracting State gross remuneration in that State exceeding ten thousand Australian dollars or its equivalent in Philippine pesos from performing his activities,so much of the income derived by him as is attributable to activities so performed may be taxed in the other State.
(2)
The Treasurer of Australia and the Minister of Finance of the Philippines may agree in letters exchanged for the purpose to variations in the amount specified in subparagraph (c) of paragraph (1) and any variations so agreed shall have effect according to the tenor of the letters.
(3)
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities, as well as in the exercise of independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 18, 19 and 20, salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as isderived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if-
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the year of income or taxable year, as the case may be, of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that Contracting State.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a resident of one of the Contracting States in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State. In relation to remuneration of a director of a company derived from the company in respect of the discharge of day-to-day functions of a managerial or technical nature, the provisions of Article 15 shall apply as if the remuneration were remuneration of an employee in respect of an employment and as if references to "employer" were references to the company. ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
(2)
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
(3)
Notwithstanding the provisions of paragraph (1) and Articles 14 and 15, income derived from activities performed in a Contracting State by entertainers shall be exempt from tax in that Contracting State if the visit to that State is substantially supported or sponsored by the other Contracting State and the entertainer is certified as qualifying under this provision by the competent authority of that other State.
ARTICLE 18 Pensions and Annuities
(1)
Pensions (including government pensions) and annuities paid to a resident of one of the Contracting States shall be taxable only in that State. However, pensions paid by a Philippine enterprise under a pension plan not registered under Philippine law may be taxed in the Philippines.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
ARTICLE 19 Government Service
(1)
Remuneration (other than a pension) paid by a Contracting State or a political subdivision of that State or a local authority of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the recipient is a resident of that State who-
(a) is a citizen or national of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
(2)
The provisions of paragraph (1) shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by one of the Contracting States or a political sub-division of one of the States or a local authority of one of the States. In such a case the provisions of Article 15 and 16 shall apply.
ARTICLE 20 Professors and Teachers
(1)
Remuneration which a professor or teacher who is a resident of one of the Contracting States and who visits the other Contracting State for a period not exceeding two years for the purpose of teaching or carrying out advanced study or research at a university, college, school or other educational institution receives for those activities shall be taxable only in the first-mentioned State.
(2)
This Article shall not apply to remuneration which a professor or teacher receives for conducting research if the research is undertaken primarily for the private benefit of a specific person or persons.
(3)
For the purposes of paragraph (1), the term "remuneration" shall include remittances from sources outside the other State sent to enable the professor or teacher to carry out the purposes referred to in paragraph (1).
ARTICLE 21 Students and Trainees
Where a student or trainee, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in the other State solely for the purpose of his education or training, receives remittances from sources outside the other State for the purpose of his maintenance or education, those payments shall be exempt from tax in the other State. ARTICLE 22 Income of Dual Resident
Where a person who by reason of the provisionsof paragraph (1) of Article 4 is a resident of both Contracting States but by reason of the provisions of paragraph (3) or (5) of that Article is deemed for the purposes of this Agreement to be a resident solely of one of the Contracting States derives income from sources in that Contracting State or from sources outside both Contracting States, that income shall be taxable only in that Contracting State. ARTICLE 23 Source of Income
Income derived by a resident of one of the Contracting States which, under any one or more of Articles 6 to 8 and 10 to 17 may be taxed in the other Contracting State, shall, for the purposes of Article 24 and of the income tax law of that other State, be deemed to be income from sources in that other State.CHAPTER IV METHODS OF ELIMINATION OF DOUBLE TAXATION
ARTICLE 24
(1)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Philippine tax paid, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in the Philippines (excluding, in the case of dividends, tax paid in respect of the profits out of which the dividends are paid except to the extent that the provisions of paragraph (2) may permit that tax to be included) shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
A company which is a resident of Australia is, in accordance with the provisions of the taxation law of Australia in force at the date of signature of this Agreement, entitled to a rebate in its assessment at the average rate of tax payable by the company in respect of dividends that are included in its taxable income and are received from a company that is a resident of the Philippines. However, should the law so in force be amended so that the rebate in relation to the dividends ceases to be allowable under that law, credit shall be allowed to the first-mentioned company under paragraph (1) for the Philippine tax paid on the profits out of which the dividends are paid, but only if that company beneficially owns at least 10 per cent of the paid-up share capital of the second-mentioned company.
(3)
For the purposes of paragraph (1) and of the income tax law of Australia-
(a) a resident of Australia deriving income from sources in the Philippines, consisting of royalties to which sub-paragraph (a) of paragraph (2) of Article 12 applies, shall be deemed to have paid, in addition to any Philippine tax actually paid, Philippine tax in an amount equal to 5% of the gross amount of the royalties; and
(b) the amount of the said royalties shall be deemed to be the amount that would have been the amount of the royalties if no Philippine tax had been paid, increased by 5%.
(4)
In accordance with the provisions and subject to the limitations of the law of the Philippines (as it may be amended from time to time without changing the general principle hereof), the Philippines shall allow to a resident of the Philippines as a credit against the Philippine tax the appropriate amount of taxes paid or accrued to Australia. In the case of a Philippine corporation owning more than 50 per cent of the voting stock of an Australian corporation from which it receives dividends in any taxable year, the Philippines shall also allow credit for the appropriate amount of taxes paid or accrued to Australia by an Australian corporation paying such dividends with respect to the profits out of which such dividends are paid. Such appropriate amount shall be based upon the amount of tax paid or accrued to Australia, but the credit shall not exceed the limitations (for the purpose of limiting the credit to the Philippine tax on income from sources within Australia, and on income from sources outside the Philippines) provided by Philippine law for the taxable year.
CHAPTER V SPECIAL PROVISIONS
ARTICLE 25 Mutual Agreement Procedure
(1)
Where a resident of one of the Contracting States considers that the actions of the competent authority of one or both of the Contracting States result or will result for him in taxation not in accordance with this Agreement, he may, notwithstanding the remedies provided by the national laws of those States, present his case to the competent authority of the Contracting State of which he is a resident. The case must be presented in writing within two years from the first notification of the action.
(2)
The competent authority shall endeavour, if the taxpayer's claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement.
(3)
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the application of this Agreement.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 26 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the domestic laws of the Contracting States concerning the taxes to which this Agreement applies insofar as the taxation thereunder is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
(2)
In no case shall the provisions of paragraph (1) be construed so as to impose on a Contracting State the obligation-
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 27 Diplomatic and Consular Officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special agreements. ARTICLE 28 Miscellaneous
If, under any Agreement or Convention concluded by the Philippines, a resident of any other country is exempt from-
(a) the Philippine income tax on gross billings relating to the operation of aircraft in international traffic; or
(b) the Philippine business tax on gross receipts relating to the operation of ships or aircraft in international traffic,the Philippines will grant a corresponding exemption to residents of Australia and Australia will grant a corresponding exemption to residents of the Philippines.
CHAPTER VI FINAL PROVISIONS
ARTICLE 29 Entry into Force
(1)
This Agreement shall be ratified and the instruments of ratification shall be exchanged at Canberra, Australia as soon as possible.
(2)
The Agreement shall enter into force upon the date of exchange of the instruments of ratification and its provisions shall have effect:
(a) in Australia-
(i) with respect to withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year in which the exchange of instruments of ratification takes place;
(ii) with respect to other Australian tax, in relation to income of any year of income beginning on or after 1 July in that calendar year;
(b) in the Philippines-
(i) in respect of tax withheld at the source on amounts paid to non-residents on or after the first day of January in the calendar year in which the exchange of instruments of ratification takes place; and
(ii) in respect of other taxes for taxable years beginning on or after the first day of January in that calendar year.
ARTICLE 30 Termination
This Agreement shall continue in effect indefinitely but either Contracting State may, on or before June 30 in any calendar year after the fifth year following the exchange of the instruments of ratification, give to the other Contracting State, through the diplomatic channel, written notice of termination and in such event the Agreement shall cease to have effect:
(a) in Australia-
(i) with respect to withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the written notice of termination takes place;
(ii) with respect to other Australian tax, in relation to income of any year of income beginning on or after 1 July in the next following calendar year;
(b) in the Philippines-
(i) in respect of tax withheld at the source on amounts paid to non-residents on or after the first day of January in the calendar year next following that in which the written notice of termination takes place; and
(ii) in respect of other taxes for taxable years beginning on or after the first day of January in the next following calendar year.IN WITNESS WHEREOF the undersigned, duly authorized thereto, have signed this Agreement.
DONE in duplicate at Manila this 11th day of May One thousand nine hundred and seventy nine in the English language.
R. V. GARLAND
FOR THE GOVERNMENT OF AUSTRALIACESAR VIRATA
FOR THE GOVERNMENT OF THE REPUBLIC OF THE PHILIPPlNES
Sch 14 added by No 23 of 1980. The Philippine Agreement entered into force on 17 June 1980.
(Repealed by No 45 of 2011)
History
Sch 15 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Swiss Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 15 formerly read:
SCHEDULE 15 - Swiss Agreement
Section 3
AGREEMENT BETWEEN AUSTRALIA AND SWITZERLAND FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAXES ON INCOME
CHAPTER I SCOPE OF THE AGREEMENT
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States. ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Agreement shall apply are-
(a) in Australia:
The Australian income tax, including the additional tax upon the undistributed amount of the distributable income of a private company and also income tax upon the reduced taxable income of a non-resident company;
(b) in Switzerland:
The Federal, cantonal and communal taxes on income (total income, earned income, income from capital, industrial and commercial profits and other items of income).
(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. At the end of each calendar year, the competent authority of each Contracting State shall notify the competent authority of the other Contracting State of any substantial changes which have been made in the laws of his State relating to the taxes to which this Agreement applies.
(3)
In this Agreement, the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies; the term "Swiss tax" means tax imposed in Switzerland, being tax to which this Agreement applies; and the term "tax" means Australian tax or Swiss tax, as the context requires; but the terms "Australian tax" and "Swiss tax" do not include any penalty or interest imposed under the law in force in either Contracting State relating to the taxes to which this Agreement applies.
(4)
This Agreement shall not apply to Federal anticipatory tax withheld in Switzerland at the source on prizes in a lottery.
CHAPTER II DEFINITIONS
ARTICLE 3 General Definitions
(1)
In this Agreement, unless the context otherwise requires-
(a) the term "Australia" means the Commonwealth of Australia and, when used in a geographical sense, includes-
(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 Coral Sea Islands Territory; and
(vi) any area adjacent to the territorial limits of Australia or of the said Territories in respect of which there is for the time being in force, consistently with international law, a law of Australia or of a State or part of Australia or of a Territory aforesaid dealing with the exploitation of any of the natural resources of the sea-bed and subsoil of the continental shelf;
(b) the term "Switzerland" means the Swiss Confederation;
(c) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" mean Australia or Switzerland, as the context requires;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" includes any body or association corporate or unincorporate which is treated as a company or body corporate for tax purposes;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Switzerland, as the context requires;
(g) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or his authorized representative, and in the case of Switzerland, the Director of the Federal Tax Administration or his authorized representative.
(2)
In the application of this Agreement by one of the Contracting States, any term not otherwise defined shall, unless the context otherwise requires, have the meaning which it has under the laws of that Contracting State relating to the taxes to which this Agreement applies.
ARTICLE 4 Residence
(1)
(a) For the purposes of this Agreement, a person is a resident of Australia if the person is a resident of Australia for purposes of Australian tax. However, in relation to income from sources in Switzerland, a person who is subject to Australian tax on income which is from sources in Australia shallnot be treated as a resident of Australia unless the income from sources in Switzerland is subject to Australian tax or, if that income is exempt from Australian tax, it is so exempt solely because it is subject to Swiss tax.
(b) For the purposes of this Agreement, a person is a resident of Switzerland if the person is subject to unlimited tax liability in Switzerland.
(2)
Where by reason of the preceding provisions of this Article an individual is a resident of both Contracting States, then his status shall be determined in accordance with the following rules:
(a) he shall be deemed to be a resident solely of the Contracting State in which he has a permanent home available to him;
(b) if he has a permanent home available to him in both Contracting States, or if he does not have a permanent home available to him in either of them, he shall be deemed to be a resident solely of the Contracting State with which his personal and economic relations are the closer.
(3)
Where by reason of the provisions of paragraph (1), a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially-
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, quarry or other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property;
(h) a building site or construction, installation or assembly project which exists for more than twelve months.
(3)
An enterprise shall not be deemed to have a permanent establishment merely by reason of-
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(4)
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if-
(a) it carries on supervisory activities in that State for more than twelve months in connection with a building site, or a construction, installation or assembly project which is being undertaken in that State; or
(b) substantial equipment is being used in that State for more than twelve months by, for or under contract with the enterprise in exploration for, or the exploitation of, natural resources, or in activities connected with such exploration or exploitation.
(5)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (6) applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if-
(a) he has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless his activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting, he manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise, provided that this provision shall apply only in relation to the goods or merchandise so manufactured or processed.
(6)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of his business as such a broker or agent.
(7)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise) shall not of itself make either company a permanent establishment of the other.
(8)
The principles set forth in paragraphs (1) to (7) inclusive shall be applied in determining for the purposes of this Agreement whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
CHAPTER III TAXATION OF INCOME
ARTICLE 6 Income from Real Property
(1)
Income from real property may be taxed in the Contracting State in which the real property is situated.
(2)
The term "real property" shall have the meaning which it has under the laws in force in the Contracting State in which the property in question is situated. The term shall in any case include rights to royalties and other payments in respect of the operation of mines or quarries or of the exploitation of any natural resource, which rights shall be regarded as situated where the mines, quarries or natural resource are situated. Ships, boats or aircraft shall not be regarded as real property.
(3)
The provisions of paragraph (1) shall apply to income derived from the direct use, letting, or use in any other form of real property.
(4)
Income from a lease of land and income from any other direct interest in or over land, whether or not improved, shall be regarded as income from real property situated where the land is situated.
(5)
The provisions of paragraphs (1), (3) and (4) shall also apply to the income from real property of an enterprise and to income from real property used for the performance of independent personal services.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State, but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph (3), where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
ARTICLE 8 Shipping and Air Transport
(1)
Profits from the operation of ships or aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1), such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
(3)
The provisions of paragraphs (1) and (2) shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organization or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in one of the Contracting States for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
(5)
The amount which shall be charged to tax in one of the Contracting States as profits from the operation of ships or aircraft in respect of which a resident of the other Contracting State may be taxed in the first-mentioned State under paragraph (2) or (3) shall not exceed 5 per cent of the amount paid or payable (net of rebates) in respect of carriage in such operations.
(6)
Paragraph (5) shall not apply to profits derived from the operation of ships or aircraft by a resident of one of the Contracting States whose principal place of business is in the other Contracting State, nor shall it apply to profits derived from the operation of ships or aircraft by a resident of one of the Contracting States if those profits are derived otherwise than from the carriage of passengers, livestock, mails, goods or merchandise. In such cases, the provisions of Article 7 shall apply.
ARTICLE 9 Associated Enterprises
Where-
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends.
(3)
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the taxation law of the Contracting State of which the company making the distribution is a resident.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State, being the State of which the company paying the dividends is a resident, through a permanent establishment situated therein or performs in that other State independent personal services from a fixed base situated therein and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In any such case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment situated in that other State. Provided that this paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Switzerland for the purposes of Swiss tax.
ARTICLE 11 Interest
(1)
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to interest by the taxation law of the Contracting State in which the income arises.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, being the State in which the interest arises, through a permanent establishment situated therein or performs in that other State independent personal services from a fixed base situated therein and the indebtedness giving rise to the interest is effectively connected with the permanent establishment or fixed base. In any such case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Interest shall be deemed to arise in one of the Contracting States when the payer is that Contracting State itself or a political subdivision of that State or a local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether he is a resident of one of the Contracting States or not, has in one of the Contracting States a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 12 Royalties
(1)
Royalties arising in one of the Contracting States being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
(3)
The term "royalties" in this Article means payments (including credits), whether periodical or not and however described or computed, to the extent to which they are consideration for 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, or industrial, commercial or scientific equipment, or for the supply of scientific, technical, industrial or commercial knowledge or information, or any assistance of an ancillary and subsidiary nature furnished as a means of enabling the application or enjoyment of such knowledge or information or any other property or right to which this Article applies, or for the use of, or the right to use, motion picture films, films or video tapes for use in connection with television or tapes for use in connection with radio broadcasting, or for total or partial forbearance in respect of the use of a property or right referred to in this paragraph.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business in the other Contracting State, being the State in which the royalties arise, through a permanent establishment situated therein or performs in that other State independent personal services from a fixed base situated therein and the asset giving rise to the royalties is effectively connected with that permanent establishment or fixed base. In any such case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Royalties shall be deemed to arise in one of the Contracting States when the payer is that Contracting State itself or a political sub-division of that State or a local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether he is a resident of one of the Contracting States or not, has in one of the Contracting States a permanent establishment or a fixed base in connection with which the obligation to pay the royalties was incurred, and such royalties are borne by such permanent establishment or fixed base, then such royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties or between both of them and some other person, the amount of the royalties paid, having regard to what they are paid for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of Property
(1)
Income or gains from the alienation of real property or of a direct interest in or over land or of a right to exploit, or to explore for, a natural resource may be taxed in the Contracting State in which the real property, the land or the natural resource is situated.
(2)
For the purposes of this Article, shares or comparable interests in a company, the assets of which consist wholly or principally of real property or of direct interests in or over land in one of the Contracting States or of rights to exploit, or to explore for, natural resources in one of the Contracting States, shall be deemed to be real property situated in the Contracting State in which the land or the natural resources are situated or in which the exploration may take place.
(3)
Subject to the provisions of paragraphs (1) and (2), income from the alienation of capital assets of an enterprise of one of the Contracting States shall be taxable only in that Contracting State, but, where those assets form part of the business property of a permanent establishment situated in the other Contracting State, such income may be taxed in that other State.
ARTICLE 14 Independent Personal Services
(1)
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base.
(2)
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 18 and 19 salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if-
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the year of income or the fiscal year as the case may be, of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that Contracting State.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a resident of one of the Contracting States in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State maybe taxed in that other State. ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
(2)
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
(3)
The provisions of paragraph (2) shall not apply if it is established that neither the entertainer nor persons related to the entertainer participate directly or indirectly in the profits of the person referred to in that paragraph.
ARTICLE 18 Pensions and Annuities
(1)
Pensions (including government pensions) and annuities paid to a resident of one of the Contracting States shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
(3)
Notwithstanding anything in this Agreement-
(a) the pensions and other payments referred to in paragraphs (a) and (b) of sub-section 23AD(3) of the Australian Income Tax Assessment Act 1936, as amended, where they are paid by Australia, shall be exempt from Swiss tax as long as they are exempt from Australian tax;
(b) the pensions and other payments received from Switzerland under the legislation concerning Military Insurance shall be exempt from Australian tax as long as they are exempt from Swiss tax.
ARTICLE 19 Government Service
(1)
Remuneration (other than a pension or annuity) paid by one of the Contracting States or a political sub-division of that State or a local authority of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen or national of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
(2)
The provisions of paragraph (1) shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by one of the Contracting States or a political sub-division of one of the States or a local authority of one of the States. In such a case the provisions of Articles 15 and 16 shall apply.
ARTICLE 20 Students
Where a student, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in the other State solely for the purpose of his education, receives payments from sources outside the other State for the purpose of his maintenance or education, those payments shall be exempt from tax in the other State. ARTICLE 21 Income of Dual Resident
Where a person, who by reason of the provisions of paragraph (1) of Article 4 is a resident of both Contracting States but by reason of the provisions of paragraph (2) or (3) of that Article is deemed for the purposes of this Agreement to be a resident solely of one of the Contracting States, derives income from sources in that Contracting State or from sources outside both Contracting States, that income shall be taxable only in that Contracting State.CHAPTER IV METHODS OF ELIMINATION OF DOUBLE TAXATION
ARTICLE 22
(1)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Swiss tax paid, whether directly or by deduction, in respect of income derived by a resident of Australia from sources in Switzerland (not including, in the case of a dividend, tax paid in respect of the profits out of which the dividend is paid) shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
Where a resident of Switzerland derives income dealt with in this Agreement and which, in accordance with the provisions of this Agreement, may be taxed in Australia, Switzerland shall, subject to the provisions of paragraph (3), exempt such income from Swiss tax but may, in calculating tax on the remaining income of that person, apply the rate of tax which would have been applicable if the exempted income had not been so exempted. Provided, however, that the exemption shall apply to gains from the alienation of property referred to in paragraph (2) of Article 13 only if taxation of such gains by Australia is demonstrated.
(3)
Where a resident of Switzerland derives dividends, interest or royalties which, in accordance with the provisions of Articles 10, 11 and 12, may be taxed in Australia, Switzerland shall allow, upon request, relief to that person. The relief may consist of:
(a) a deduction from the Swiss tax on the income of that person of an amount equal to the tax levied in Australia in accordance with the provisions of Articles 10, 11 and 12; such deduction shall not, however, exceed that part of the Swiss tax, as computed before the deduction is given, which is attributable to the income which may be taxed in Australia, or
(b) a lump sum reduction of the Swiss tax determined by standardised formulae which have regard tothe general principles of the relief referred to in sub-paragraph (a), or
(c) a partial exemption of such dividends, interest or royalties from Swiss tax, in any case consisting at least of the deduction of the tax levied in Australia from the gross amount of the dividends, interest or royalties.Switzerland shall determine the applicable relief and regulate the procedure in accordance with the Swiss provisions relating to the carrying out of international conventions of the Swiss Confederation for the avoidance of double taxation.
(4)
A company which is a resident of Switzerland and which derives dividends from a company which is a resident of Australia shall be entitled, for the purposes of Swiss tax with respect to such dividends, to the same relief which would be granted if the company paying the dividends were a resident of Switzerland.
CHAPTER V SPECIAL PROVISIONS
ARTICLE 23 Mutual Agreement Procedure
(1)
Where a resident of one of the Contracting States considers that the actions of tax authorities in one or both of the Contracting States result or will result for him in taxation not in accordance with this Agreement, he may, notwithstanding the remedies provided by the national laws of those States, present his case to the competent authority of the Contracting State of which he is a resident.
(2)
The competent authority shall endeavour, if the taxpayer's claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement.
(3)
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the application of this Agreement.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 24 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information (being information which is at their disposal under their respective taxation laws in the normal course of administration) as is necessary for carrying out the provisions of this Agreement in relation to the taxes which are the subject of this Agreement. Any information so exchanged shall be treated as secret and shall not be disclosed to any persons other than those concerned with the assessment and collection of the taxes which are the subject of this Agreement. No information as aforesaid shall be exchanged which would disclose any trade, business, industrial or professional secret or trade process.
(2)
In no case shall the provisions of this Article be construed as imposing upon either of the Contracting States the obligation to carry out administrative measures at variance with the regulations and practice of either Contracting State or which would be contrary to its sovereignty, security or public policy or to supply particulars which are not procurable under its own legislation or that of the State making application.
ARTICLE 25 Source of Income
Income derived by a resident of one of the Contracting States which, under any one or more of Articles 6 to 8 and 10 to 17 may be taxed in the other Contracting State, shall for the purposes of Article 22, and of the income tax law of that other State, be deemed to be income from sources in that other State. ARTICLE 26 Diplomatic and Consular Officials
(1)
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special agreements.
(2)
For the purposes of this Agreement, an individual who is a member of a diplomatic mission, consular post or permanent mission of one of the Contracting States which is situated in the other Contracting State or in a third State shall be deemed to be a resident of the sending Contracting State if-
(a) in accordance with international law he is not liable to tax in the receiving Contracting State in respect of income from sources outside that Contracting State, and
(b) he is liable in the sending Contracting State to the same obligations in relation to tax on his total income as are residents of that Contracting State.
(3)
This Agreement shall not apply to international organisations, to organs or officials thereof or to persons who are members of a diplomatic mission, consular post or permanent mission of a third State, being present in one of the Contracting States and not treated in either Contracting State as residents in respect of taxes on income.
CHAPTER VI FINAL PROVISIONS
ARTICLE 27 Entry into Force
This Agreement shall come into force on the date on which the Government of Australia and the Swiss Federal Council exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in Switzerland, as the case may be, and thereupon this Agreement shall have effect-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in respect of income derived on or after 1 January 1979;
(ii) in respect of other Australian tax for any year of income beginning on or after 1 July 1979;
(b) in Switzerland-
for any taxable year beginning on or after 1 January 1979. ARTICLE 28 Termination
This Agreement shall continue in effect indefinitely, but the Government of Australia or the Swiss Federal Council may on or before 30 June in any calendar year give to the other through the diplomatic channel written notice of termination and, in that event this Agreement shall cease to be effective-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in respect of income derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, for any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in Switzerland-
for any taxable year beginning on or after 1 January in the calendar year next following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorized thereto, have signed this Agreement.
DONE in duplicate at Canberra this 28th day of February One thousand nine hundred and eighty in the English and German languages, both texts being equally authoritative.
PROTOCOL
JOHN HOWARD
FOR THE GOVERNMENT OF AUSTRALIAHENRI ROSSI
FOR THE SWISS FEDERAL COUNCIL
(1)
With reference to Article 2, the provisions of the Australian law relating specifically to the income tax upon the reduced taxable income of a non-resident company in existence at the date of signature of this Agreement are to be applied in ascertaining the income subject to that tax or, if those provisions are amended so as to make more favourable to the company the ascertainment of that income, those provisions as so amended are to be so applied.
(2)
With reference to Article 7,
(a) insofar as it has been customary in one of the Contracting States to determine the profits to be attributed to a permanent establishment on the basis of an apportionment of the total profits of the enterprise to its various parts, nothing in paragraph (2) of Article 7 shall preclude that Contracting State from determining the profits to be taxed by such an apportionment as may be customary; the method of apportionment adopted shall, however, be such that the result shall be in accordance with the principles contained in that Article;
(b) for the purposes of (a) and of paragraphs (1) to (4) of Article 7, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary;
(c) Article 7 of the Agreement shall not apply to profits of an enterprise from carrying on a business of any form of insurance, other than life insurance.
(3)
With reference to Articles 7 and 9, where the information available to the competent authority of one of the Contracting States is inadequate to determine the profits of an enterprise on which tax may be imposed in that State in accordance with Article 7 or Article 9 of the Agreement, nothing in those Articles shall affect the application of any law of that State relating to the determination of the tax liability of an enterprise in special circumstances, provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of those Articles.
(4)
With reference to Articles 10, 11 and 12, if, in an Agreement for the avoidance of double taxation that is subsequently made between Australia and a third State being a State that at the date of signature of this Protocol is a member of the Organisation for Economic Co-operation and Development, Australia shall agree to limit the rate of its taxation-
(a) 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 (2) of Article 10; or
(b) on interest arising in Australia to which a resident of the third State is entitled, to a rate less than that provided in paragraph (2) of Article 11; or
(c) on royalties arising in Australia to which a resident of the third State is entitled, to a rate less than that provided in paragraph (2) of Article 12,the Government of Australia shall immediately inform the Swiss Federal Council in writing through the diplomatic channel and shall enter into negotiations with the Swiss Federal Council to review the provisions specified in (a), (b) and (c) above in order to provide the same treatment for Switzerland as that provided for the third State.
DONE in duplicate at Canberra this twenty-eighth day of February, One thousand nine hundred and eighty, in the English and German languages, both texts being equally authoritative.
JOHN HOWARD
FOR THE GOVERNMENT OF AUSTRALIAHENRI ROSSI
FOR THE SWISS FEDERAL COUNCIL
Sch 15 inserted by No 23 of 1980.
(Repealed by No 45 of 2011)
History
Sch 16 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Malaysian Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 16 formerly read:
SCHEDULE 16 - Malaysian Agreement
Section 3
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF MALAYSIA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOMEas amended by Sch 16A (the Malaysian Protocol) and Sch 16B (the Second Malaysian Protocol)
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes Covered
1.
The existing taxes to which this Agreement shall apply are-
(a) in Australia:
the Australian income tax, including the additional tax upon the undistributed amount of the distributable income of a private company;
(b) in Malaysia:
income tax and excess profit tax; supplementary income taxes, that is, tin profits tax, development tax and timber profits tax; and petroleum income tax.
2.
This Agreement shall also apply to any identical or substantially similar taxes which are imposed by either Contracting State after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authority of each Contracting State shall notify the competent authority of the other Contracting State of any significant changes which have been made in the laws of its Contracting State relating to the taxes to which this Agreement applies.
ARTICLE 3 General Definitions
1.
In 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; andand 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 exploitation of any of the natural resources of the seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "Malaysia" means the territories of the Federation of Malaysia, the territorial waters of Malaysia and the sea-bed and subsoil of the territorial waters, and includes any area extending beyond the limits of the territorial waters of Malaysia, and the sea-bed and subsoil of any such area, which has been or may hereafter be designated under the laws of Malaysia and in accordance with international law as an area over which Malaysia has sovereign rights for the purposes of exploring and exploiting the natural resources, whether living or non-living;
(c) the terms "Contracting State, one of the Contracting States" and "other Contracting State" mean Australia or Malaysia, as the context requires;
(d) the term "person" includes an individual, a company and such unincorporated bodies of persons as are treated as persons under the taxation laws of the respective Contracting States;
(e) the term "company" means any body corporate or any entity which is treated as a company for tax purposes;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean respectively an enterprise carried on by a resident of one of the Contracting States and an enterprise carried on by a resident of the other Contracting State;
(g) the term "tax" means Australian tax or Malaysian tax, as the context requires;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "Malaysian tax" means tax imposed by Malaysia, being tax to which this Agreement applies by virtue of Article 2;
(j) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or his authorized representative, and in the case of Malaysia, the Minister of Finance or his authorized representative.
2.
In this Agreement, the terms "Australian tax" and "Malaysian tax" do not include any penalty or interest imposed under the taxation laws of either Contracting State.
3.
In the application of this Agreement by a Contracting State, any term not otherwise defined shall, unless the context otherwise requires, have the meaning which it has under the taxation laws of that Contracting State from time to time in force.HistoryArt 3 amended by Sch 16A (the Malaysian Protocol).
ARTICLE 4 Residence
1.
For the purposes of this Agreement, a person is a resident of one of the Contracting States-
(a) in the case of Australia, if the person is a resident of Australia for the purposes of Australian tax; and
(b) in the case of Malaysia, if the person is resident in Malaysia for the purposes of Malaysian tax.
2.
Where by reason of the preceding provisions an individual is a resident of both Contracting States, then his status shall be determined in accordance with the following rules:
(a) he shall be deemed to be a resident solely of the Contracting State in which he has a permanent home available to him;
(b) if he has a permanent home available to him in both Contracting States, or if he does not have a permanent home available to him in either of them, he shall be deemed to be a resident solely of the Contracting State in which he has an habitual abode;
(c) if he has an habitual abode in both Contracting States, or if he does not have an habitual abode in either of them, he shall be deemed to be a resident solely of the Contracting State with which his personal and economic relations are the closer.
3.
In determining for the purposes of paragraph 2 the Contracting State with which an individual's personal and economic relations are the closer, the matters to which regard may be had shall include the citizenship of the individual.
4.
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
1.
For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
2.
The term "permanent establishment" shall include especially-
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, oil or gas well, quarry or any other place of extraction of natural resources including timber or other forest produce;
(g) an agricultural, pastoral or forestry property;
(h) a building site or construction, installation or assembly project which exists for more than six months.
3.
An enterprise shall not be deemed to have a permanent establishment merely by reason of-
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
4.
An enterprise of one of the Contracting States shall be deemedto have a permanent establishment in the other Contracting State and to carry on business through that permanent establishment if-
(a) it carries on supervisory activities in that other State for more than six months in connection with a building site, or a construction, installation or assembly project which is being undertaken in that other State;
(b) substantial equipment is in that other State being used or installed by, for or under contract with, the enterprise; or
(c) it furnishes services, including consultancy services, in that other State through employees or other personnel engaged by the enterprise for such purpose, but only where those activities continue (for the same or a connected project) within the other State for a period or periods aggregating more than three months within any twelve-month period.
5.
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State (other than an agent of an independent status to whom paragraph 6 applies) shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if-
(a) he has, and habitually exercises in that first-mentioned State, an authority to conclude contracts on behalf of the enterprise, unless his activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) there is maintained in that first-mentioned State a stock of goods or merchandise belonging to the enterprise from which he habitually fills orders on behalf of the enterprise; or
(c) in so acting, he manufactures or processes in that first-mentioned State for the enterprise goods or merchandise belonging to the enterprise.
6.
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of his business as such a broker or agent.
7.
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise) shall not of itself make either company a permanent establishment of the other.HistoryArt 5 amended by Sch 16A (the Malaysian Protocol).
ARTICLE 6 Income from Land
1.
Income from land may be taxed in the Contracting State in which the land is situated.
2.
In this Article, the word "land" shall have the meaning which it has under the law of the Contracting State in which the land in question is situated; it shall include any estate or direct interest in land whether improved or not. A right to receive variable or fixed payments either as consideration for the exploitation of or the right to explore for or exploit, or in respect of the exploitation of, mineral deposits, oil or gas wells, quarries or other places of extraction or exploitation of natural resources or for the exploitation of, or the right to exploit or to fell any standing trees, plants or forest produce shall be deemed to be an estate or direct interest in land situated in the Contracting State in which the mineral deposits, oil or gas wells, quarries, natural resources, or standing trees, plants or forest produce, as the case may be, are situated or where the exploration may take place.
3.
The provisions of paragraph 1 shall apply to income derived from the direct use, letting or use in any other form of land.
4.
The provisions of paragraphs 1 and 3 shall also apply to the income from land of an enterprise and to income from land used for the performance of professional services.HistoryArt 6 amended by Sch 16A (the Malaysian Protocol).
ARTICLE 7 Business Income or Profits
1.
The income or profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the income or profits of the enterprise may be taxed in the other State, but only so much of them as is attributable to that permanent establishment.
2.
Subject to the provisions of paragraph 3, where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the income or profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing at arm's length with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
3.
In the determination of the income or profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses (including executive and general administrative expenses) which are reasonably connected with the permanent establishment and which would be deductible if the permanent establishment were an independent entity that incurred those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
4.
No income or profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5.
If the information available to the competent authority of a Contracting State is inadequate to determine the income or profits to be attributed to the permanent establishment of an enterprise, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person by the exercise of a discretion or the making of an estimate by the competent authority, provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
6.
Where income or profits include any item of income or profits which is dealt with separately in another Article of this Agreement, the provisions of that other Article, (except where otherwise provided in that Article) shall not be affected by the provisions of this Article.
7.
Nothing in this Article shall affect the operation of any taxation law:
(a) in the case of Australia,
relating to insurance with non-residents; and
(b) in the case of Malaysia,
relating to income or profits from an insurance business:provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character), the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
8.
Where:
(a) a resident of one of the Contracting States is beneficially entitled, whether directly or indirectly through one or more trusts, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee has, in accordance with the principles of Article 5, a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in that other State by that resident through a permanent establishment situated therein and the resident's share of business profits shall be attributed to that permanent establishment.
HistoryArt 7 amended by Sch 16A (the Malaysian Protocol).
ARTICLE 8 Shipping and Air Transport
1.
Income or profits from the operation of ships or aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
2.
Notwithstanding the provisions of paragraph 1, such income or profits may be taxed in the other Contracting State where they are income or profits from operations of ships or aircraft confined solely to places in that other State.
3.
The provisions of paragraphs 1 and 2 shall apply in relation to the share of the income or profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organization or in an international operating agency.
4.
For the purposes of this Article, income or profits derived from the carriage by shipsor aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as income or profits from operations of ships or aircraft confined solely to places in that State.
5.
Nothing in this Article shall affect the application of the law of a Contracting State relating to the determination of tax liability by the exercise of a discretion or the making of an estimate by the competent authority in determining the tax liability of a resident of the other Contracting State in respect of operations of ships or aircraft confined solely to places in the first-mentioned State.
ARTICLE 9 Associated Enterprises
1.
Where-
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing at arm's length, then any income or profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the income or profits of that enterprise and taxed accordingly.
2.
If the information available to the competent authority of a Contracting State is inadequate to determine the income or profits to be attributed to an enterprise, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person by the exercise of a discretion or the making of an estimate by the competent authority, provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
3.
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of the provisions of paragraph 1 or 2, in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might reasonably have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might reasonably have been expected to have operated between independent enterprises dealing wholly independently with one another, then the firstmentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the firstmentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.HistoryArt 9 amended by Sch 16B (the second Malaysian Protocol) Art 1, by inserting para 3, applicable in relation to income of any year of income beginning on or after 1 July 2004.
ARTICLE 10 Dividends
1.
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
However, those dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident, and according to the law of that State, but:
(a) in Australia:
(i) no tax shall be charged on dividends to the extent to which those dividends have been "franked" in accordance with Australia's law relating to tax, if the person beneficially entitled to those dividends is a company (other than a partnership) which holds directly at least 10 per cent of the voting power in the company paying the dividends; and
(ii) tax charged shall not exceed 15 per cent of the gross amount of the dividends to the extent to which those dividends are not within subparagraph (a)(i); and
(b) in Malaysia:
no tax shall be charged on dividends paid by a company which is resident in Malaysia for the purposes of Malaysian tax being dividends to which a resident of Australia is beneficially entitled, in addition to the tax chargeable in respect of the income or profits of the company paying the dividends.
3.
For the purposes of paragraph 2, if the relevant law in either Contracting State at the date of signature of this Protocol is varied otherwise than in minor respects so as not to affect its general character, the Contracting States shall consult each other with a view to agreeing to any amendment of that paragraph that may be appropriate.
4.
The term "dividends" as used in this Article means income from shares, as wellas other amounts which are subjected to the same taxation treatment as income from shares by the law of the State of which the company making the distribution is a resident for the purposes of its tax.
5.
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated in that other State, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment. In that case the provisions of Article 7 shall apply.
6.
Where a company which is a resident of one of the Contracting States derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company - being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled - except insofar as the holding in respect of which, such dividends are paid is effectively connected with a permanent establishment situated in that other State, even if the dividends paid consist wholly or partly of profits or income arising in such other State. This paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Malaysia for the purposes of Malaysian tax.
7.
Dividends paid by a company which is a resident of Malaysia shall include dividends paid by a company which is a resident of Singapore which for the purpose of those dividends has declared itself to be a resident of Malaysia, but shall not include dividends paid by a company which is a resident of Malaysia which for the purpose of those dividends has declared itself to be a resident of Singapore.HistoryArt 10 substituted by Sch 16B (the second Malaysian Protocol) Art 2, applicable in relation to income of any year of income beginning on or after 1 July 2004. Art 10 formerly read:
ARTICLE 10 Dividends
1.
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
Dividends paid by a company which is a resident of Australia for the purposes of Australian tax, being dividends to which a resident of Malaysia is beneficially entitled, may be taxed in Australia according to the law of Australia, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends.
3.
Subject to paragraph 4, dividends paid by a company which is resident in Malaysia for the purposes of Malaysian tax, being dividends to which a resident of Australia is beneficially entitled, shall be exempt from any tax in Malaysia which is chargeable on dividends in addition to the tax chargeable in respect of the income or profits of the company:Provided that nothing in this paragraph shall affect the provisions of the Malaysian law under which the tax in respect of a dividend paid by a company resident in Malaysia from which Malaysian tax has been, or has been deemed to be, deducted may be adjusted by reference to the rate of tax appropriate to the Malaysian year of assessment immediately following that in which the dividend was paid.
4.
If after the date of signature of this Agreement the existing system of taxation in Malaysia applicable to the income and distributions of companies is altered by the introduction of a tax on the income or profits of a company (for which no credit or only partial credit is given to its shareholders) and of a further tax on dividends paid by the company, the Malaysian tax on dividends, being dividends paid by a company which is resident in Malaysia for the purposes of Malaysian tax, and to which a resident of Australia is beneficially entitled, shall not exceed 15 per cent of the gross amount of the dividends.
5.
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State:Provided that this paragraph shall not apply in relation to dividends paid by a company which is both a resident of Australia for the purposes of Australian tax and resident in Malaysia for the purposes of Malaysian tax.
6.
The provisions of paragraphs 1 to 5 shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, has in the other Contracting State, in which the company paying the dividends is resident, a permanent establishment with which the holding by virtue of which the dividends are paid is effectively connected. In such a case, the provisions of Article 7 shall apply.
7.
Dividends paid by a company which is a resident of Malaysia shall include dividends paid by a company which is a resident of Singapore which for the purpose of those dividends has declared itself to be a resident of Malaysia, but shall not include dividends paid by a company which is a resident of Malaysia which for the purpose of those dividendshas declared itself to be a resident of Singapore.
8.
The term 'dividends' in this Article includes any item which, under the laws of the Contracting State of which the company paying the dividend is a resident, is treated as a dividend of a company.
9.
Nothing in this Agreement shall be construed as preventing a Contracting State from imposing on the income of a company which is a resident of the other Contracting State, tax in addition to the tax which would be chargeable on the chargeable income or taxable income, as the case may be, of a company which is a resident of the first-mentioned State:Provided that any additional tax so imposed by the first-mentioned State shall not exceed 15 per cent of the amount by which the chargeable income or taxable income for the year of assessment or year of income exceeds the tax which would have been payable on that income if the company had been a resident of the first-mentioned State.
ARTICLE 11 Interest
1.
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the interest.
3.
Notwithstanding the provisions of paragraph 2, interest to which a resident of Australia is beneficially entitled shall be exempt from Malaysian tax if the loan or other indebtedness in respect of which the interest is paid is an approved loan as defined in section 2(1) of the Income Tax Act, 1967 of Malaysia (as amended).
4.
The provisions of paragraphs 1, 2 and 3 shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, has in the other Contracting State in which the interest arises a permanent establishment with which the debt-claim in respect of which the interest is paid is effectively connected. In such a case the provisions of Article 7 shall apply.
5.
Interest shall be deemed to arise in a Contracting State when the payer is that Contracting State itself or a political sub-division, a local authority or statutory body thereof or a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether he is a resident of one of the Contracting States or not, has in a Contracting State a permanent establishment in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment, then such interest shall be deemed to arise in the Contracting State in which the permanent establishment is situated.
6.
Where the payer is related to the person beneficially entitled to the interest and the amount of the interest paid, having regard to the debt-claim for which it is paid, exceeds the amount which might be expected to have been agreed upon by the payer and the person so entitled if they had not been related, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the payments shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Agreement. For the purposes of this paragraph, a person is related to another person if either person participates directly or indirectly in the management, control or capital of the other, or if any third person or persons participate directly or indirectly in the management, control or capital of both.
7.
The term "interest" in this Article means interest from Government securities, or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and from debt-claims of every kind as well as other income assimilated to interest from money lent by the taxation law of the Contracting State in which the income arises.
8.
Notwithstanding the provisions of paragraph 2, interest derived from the investment of official reserve assets by the Government of a Contracting State or by a bank performing central banking functions in a Contracting State shall be exempt from tax in the other Contracting State.HistoryArt 11 amended by Sch 16A (the Malaysian Protocol).
ARTICLE 12 Royalties
1.
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
Such royalties may be taxed in the Contracting State in which they arise, and according to the laws of that State but the tax so charged shall not exceed 15 per cent of the gross amount of the royalties.
3.
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, has in the other Contracting State from which the royalties are derived a permanent establishment with which the right, property, knowledge, information or assistance giving rise to the royalties is effectively connected. In such a case the provisions of Article 7 shall apply.
4.
Royalties shall be deemed to arise in a Contracting State when the payer is that Contracting State itself or a political sub-division, a local authority or statutory body thereof or a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether he is a resident of one of the Contracting States or not, has in a Contracting State a permanent establishment in connection with which the liability to pay the royalties was incurred, and such royalties are borne by such permanent establishment, then such royalties shall be deemed to arise in the Contracting State in which the permanent establishment is situated.
5.
Where the payer is related to the person beneficially entitled to the royalties and the amount of the royalties paid or credited, having regard to the use, to the right to use, or to the knowledge, information or assistance, for which they are paid or credited, exceeds the amount which might be expected to have been agreed upon by the payer and the person so entitled if they had not been related, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the royalties paid or credited shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Agreement. For the purposes of this paragraph, a person is related to another person if either person participates directly or indirectly in the management, control or capital of the other, or if any third person or persons participate directly or indirectly in the management, control or capital of both.
6.
The term "royalties" in this Article means payments or credits of any kind to the extent to which they are made as consideration for-
(a) the use of, or the right to use, any-
(i) copyright, patent, design or model, plan, secret formula or process, trade mark or other like property or right;
(ii) industrial, commercial or scientific equipment; or
(iii) motion picture film or tape for radio or television broadcasting;
(b) the supply of scientific, technical, industrial or commercial knowledge or information;
(c) the supply of any assistance that is ancillary and subsidiary to, and is furnished as a means of enabling the application or enjoyment of, any such right or property as is described in paragraph (a)(i), any such equipment as is described in paragraph (a)(ii), or any such knowledge or information as is described in paragraph (b);
(d) the use in connection with television, radio or other broadcasting, or the right to use in connection with such broadcasting, visual images or sounds, or both, transmitted by:
(i) satellite; or
(ii) cable, optic fibre or similar technology;
(e) the use of, or the right to use, some or all of the part of the radiofrequency spectrum specified in a relevant licence; or
(f) total or partial forbearance in respect of the use of a property or right referred to in this paragraph.HistoryArt 12 amended by Sch 16B (the second Malaysian Protocol) Art 3, by deleting paras 3, 8 and 9 and renumbering the remaining paras 1 to 6, substituting "paragraphs 1 and 2" for "paragraphs 1, 2 and 3" in renumbered para 3, deleting "or" at the end of renumbered para (c), renumbering existing para (d) as (f) and inserting paras (d) and (e), applicable in relation to income of any year of income beginning on or after 1 July 2004. Paras 3, 8 and 9 formerly read:
3.
Notwithstanding the provisions of paragraph 2, approved industrial royalties derived from Malaysia by a resident of Australia who is the beneficial owner thereof shall be exempt from Malaysian tax.
8.
The term "approved industrial royalties" in this Article means royalties as defined in paragraph 7 which are approved and certified by the competent authority of Malaysia as payable for the purpose of promoting industrial development in Malaysia and which are payable by an enterprise which is wholly or mainly engaged in activities falling within one of the following classes-
(a) manufacturing, assembling or processing;
(b) construction, civil engineering or ship-building; or
(c) electricity, hydraulic power, gas or water supply.
9.
Royalties derived by a resident of Australia, being royalties that, as film rentals, are subject to the cinematograph film-hire duty in Malaysia, shall not be liable to Malaysian tax.
ARTICLE 13 Alienation of Property
1.
Income, profits or gains derived by a resident of one of the Contracting States from the alienation of land as defined in Article 6 and, as provided in that Article, situated in the other Contracting State may be taxed in that other State.
2.
Income, profits or gains from the alienation of property, other than land as defined in Article 6, that forms part of the business property of a permanent establishment which an enterprise of one of the Contracting States has in the other Contracting State, including income, profits or gains from the alienation of such a permanent establishment (alone or with the whole enterprise), may be taxed in that other State.
3.
Income, profits or gains from the alienation of ships or aircraft operated in international traffic, or of property other than land as defined in Article 6 pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise which operated those ships or aircraft is a resident.
4.
Income, profits or gains derived by a resident of a Contracting State from the alienation of any shares or other interests in a company, or of an interest of any kind in a partnership, trust or other entity, where the value of the assets of such entity, whether they are held directly or indirectly (including through one or more interposed entities, such as, for example, through a chain of companies), is principally attributable to land as defined in Article 6 and, as referred to in that Article, situated in the other Contracting State, may be taxed in that other State.
5.
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of profits or gains of a capital nature derived from the alienation of property other than that to which any of paragraphs 1, 2, 3 and 4 apply.HistoryArt 13 substituted by Sch 16A (the Malaysian Protocol).
ARTICLE 14 Personal Services
1.
Subject to Articles 15, 18, 19 and 20, remuneration (other than a pension) derived by an individual who is a resident of one of the Contracting States in respect of personal (including professional) services may be taxed only in that Contracting State unless the services are performed in the other Contracting State. If the services are so performed, such remuneration as is derived in respect thereof may be taxed in that other State.
2.
Notwithstanding the provisions of paragraph 1, remuneration (other than a pension) derived by an individual who is a resident of one of the Contracting States in respect of personal (including professional) services performed in the other Contracting State shall be taxable only in the first-mentioned State if-
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the basis year or year of income, as the case may be, of that other State;
(b) the remuneration is paid by, or on behalf of, a person who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment which that person has in that other State.
3.
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that Contracting State.
ARTICLE 15 Directors' Fees
Notwithstanding the provisions of Article 14, directors' fees and similar payments derived by a resident of one of the Contracting States in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 16 Entertainers
1.
Notwithstanding the provisions of Article 14, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
2.
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7 and 14, be taxed in the Contracting State in which the activities of the entertainer are exercised.
3.
The provisions of paragraphs 1 and 2 shall not apply to remuneration or profits derived from activities exercised in a Contracting State that are directly connected with a visit to that Contracting State that is arranged by and is directly or indirectly supported wholly or substantially from the public funds of the other Contracting State or a political subdivision, a local authority or statutory body thereof.
ARTICLE 17 Pensions and Annuities
1.
Any pension (other than a pension of the kind referred to in Article 18) or other similar payment or any annuity paid to a resident of one of the Contracting States shall be taxable only in that Contracting State.
2.
The term "annuity" means a stated sum payable periodically at stated times, during life or during a specified or ascertainable period of time, under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
3.
Any alimony or other maintenance payment arising in a Contracting State and paid to a resident of the other Contracting State, shall be taxable only in the first-mentioned State.
ARTICLE 18 Government Service
1.
Remuneration (other than a pension or annuity) paid by a Contracting State or a political subdivision or a local authority thereof to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen or national of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
2.
Any pension paid by, or out of funds created by, a Contracting State or a political subdivision or a local authority thereof to any individual in respect of services rendered to that State or subdivision or local authority thereof shall be taxable in that State.
3.
The provisions of paragraphs 1 and 2 shall not apply to remuneration or pensions in respect of services rendered in connection with any trade or business carried on by one of the Contracting States or a political subdivision or a local authority thereof. In such a case, the provisions of Articles 14, 15 and 17 shall apply.
ARTICLE 19 Professors and Teachers
1.
An individual who, at the invitation of a university, college, school or other similar recognised educational institution in a Contracting State, visits that Contracting State for a period not exceeding two years solely for the purpose of teaching or conducting research or both at such educational institution and who is, or was immediately before that visit, a resident of the other Contracting State shall be exempt from tax in the first-mentioned Contracting State on any remuneration for such teaching or research in respect of which he is, or upon the application of this Article will be, subject to tax in the other Contracting State.
2.
This Article shall not apply to remuneration which a professor or teacher receives for conducting research if the research is undertaken primarily for the private benefit of a specific person or persons.
ARTICLE 20 Students and Trainees
Where a student or a trainee, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in the other State solely for the purpose of his education or training, receives payments from sources outside the other State for the purpose of his maintenance, education or training, those payments shall be exempt from tax in the other State.HistoryArt 20 amended by Sch 16A (the Malaysian Protocol).
ARTICLE 21 Other Income
1.
Items of income of a resident of one of the Contracting States, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that State.
2.
The provisions of paragraph 1 shall not apply to income, other than income from land as defined in paragraph 2 of Article 6, derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment situated in the other Contracting State. In that case the provisions of Article 7 shall apply.
3.
Notwithstanding the provisions of paragraphs 1 and 2, items of income of a resident of one of the Contracting States not dealt with in the foregoing articles of this Agreement from sources in the other Contracting State may also be taxed in the other Contracting State.HistoryArt 21 substituted by Sch 16B (the second Malaysian Protocol) Art 4, applicable in relation to income of any year of income beginning on or after 1 July 2004. Art 21 formerly read:
ARTICLE 21 Income of Dual Resident
Where a person, who by reason of the provisions of paragraph 1 of Article 4 is a resident of both Contracting States but by reason of the provisions of paragraph 2 or 4 of that Article is deemed for the purposes of this Agreement to be a resident solely of one of the Contracting States, derives income from sources in that Contracting State or from sources outside both Contracting States, that income shall be taxable only in that Contracting State.
ARTICLE 22 Sources of Income and Gains
Income or gains derived by a resident of one of the Contracting States which, under any one or more of Articles 6 to 8, 10 to 16 and 18 may be taxed in the other Contracting State, shall for the purpose of Article 23, and of the income tax law of that other State, be deemed to be income from sources in that other State.HistoryArt 22 amended by Sch 16A (the Malaysian Protocol).
ARTICLE 23 Methods of Elimination of Double Taxation
1.
The laws in force in each of the Contracting States shall continue to govern the taxation of income in that Contracting State except where provision to the contrary is made in this Agreement. Where income is subject to tax in both Contracting States, relief from double taxation shall be given in accordance with the following paragraphs.
2.
In the case of Malaysia, subject to the law of Malaysia regarding the allowance as a credit against Malaysian tax of tax payable in any country other than Malaysia, the amount of Australian tax payable under the law of Australia and in accordance with the provisions of this Agreement, by a resident of Malaysia in respect of income from sources within Australia shall be allowed as a credit against Malaysian tax payable in respect of that income. Where such income is a dividend paid by a company which is a resident of Australia to a company which is a resident of Malaysia and which owns not less than 10 per cent of the voting shares of the company paying the dividend, the credit shall take into account Australian tax payable by that company in respect of its income out of which the dividend is paid. The credit shall not, however, exceed that part of the Malaysian tax, as computed before the credit is given which is appropriate to such item of income.
3.
(a) Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Malaysian tax paid under the law of Malaysia and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Malaysia shall be allowed as a credit against Australian tax payable in respect of that income.
(b) Where a company which is a resident of Malaysia and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 per cent of the voting power of the first-mentioned company, the credit referred to in subparagraph (a) shall include the Malaysian tax paid by that first-mentioned company in respect of that portion of its profits out of which the dividend is paid.
4.
For the purposes of paragraph 5, the term "Malaysian tax forgone" means an amount which, under the laws of Malaysia and in accordance with this Agreement, would have been payable as Malaysian tax on income had that income not been exempted either wholly or partly from Malaysian tax in accordance with Schedules 7A and 7B of the Income Tax Act 1967 of Malaysia or sections 22, 23, 29, 29A, 29B, 29C, 29D, 29E, 29F, 29G, 29H, 31E, 35, 37 and 41B of the Promotion of Investments Act 1986 of Malaysia and section 45 of that Act to the extent that it relates to sections 21, 22, 26, or 30Q of the Investment Incentives Act 1968, so far as the sections were in force on, and have not been modified since, the date of signature of the Protocol second amending the Agreement or have been modified only in minor respects so as not to affect their general character.
5.
Notwithstanding the operation of paragraph 4, Malaysian tax forgone shall not be deemed to have been paid in respect of income derived from:
(a) banking, insurance, consulting, accounting, auditing or similar services; or
(b) the operation of ships or aircraft, other than ships or aircraft operated principally from places in Malaysia and used solely in carrying on a business in Malaysia; or
(c) any scheme entered into by an Australian resident with the purpose of using Malaysia as a conduit for income or as a location of property in order to evade or avoid Australian tax through the exploitation of the Australian foreign tax credit provisions or to confer a benefit on a person who is neither a resident of Australia, nor of Malaysia.
6.
For the purposes of subparagraph (a) or (b) of paragraph 3, Malaysian tax forgone which answers the description in paragraph 4 and is not of a type referred to in paragraph 5 shall be deemed to be Malaysian tax paid.
7.
Paragraphs 4, 5 and 6 shall not apply in relation to income derived in any year of income after the year of income that ends on 30 June 2003.
8.
If in an Agreement for the avoidance of double taxation that is subsequently made between Australia and a third State, Australia should agree-
(a) in relation to dividends that are derived by a company which is a resident of Australia from a company which is a resident of the third State, to give credit for tax paid on the profits out of which the dividends are paid on the basis of a test of beneficial ownership by the first-mentioned company of less than 10 per cent of the paid-up share capital of the second-mentioned company; or
(b) to give relief from Australian tax of the kind that is provided for in relation to Malaysia in paragraphs 4 and 6, on a basis that, other than in minor respects, is more favourable in relation to the third State than that so provided for,the Government of Australia shall immediately inform the Government of Malaysia and shall enter into negotiations with the Government of Malaysia with a view to providing treatment in relation to Malaysia comparable with that provided in relation to that third State.
9.
Where gains derived by a resident of Australia are subject to real property gains tax in Malaysia, that tax shall, for the purposes of subparagraph 3(a), be deemed to be Malaysian tax.HistoryArt 23 amended by Sch 16B (the second Malaysian Protocol) Art 5, by substituting "4 and 6" for "5 and 6" in para 8(b), deleting para 9 and renumbering para 10 as para 9, applicable in relation to income of any year of income beginning on or after 1 July 2004. Paras 4 to 7 and 9 formerly read:
4. Where the income or profits on which an enterprise of one of the Contracting States has been charged to tax in that Contracting State are also included in the income or profits of an enterprise of the other Contracting State as being income or profits which, because of the conditions operative between the two enterprises, might have been expected to accrue to the enterprise of that other Contracting State if the enterprises had been independent enterprises dealing at arm's length, the income or profits so included shall be treated for the purposes of this Article as income or profits of the enterprise of the first-mentioned Contracting State from a source in the other Contracting State and credit shall be given in accordance with this Article in respect of the extra tax chargeable in that other Contracting State as a result of the inclusion of such income or profits.
5. For the purposes of paragraph 6, the term "Malaysian tax forgone" means-
(a) an amount which, under the laws of Malaysia and in accordance with this Agreement, would have been payable as Malaysian tax on income had that income not been exempted either wholly or partly from Malaysian tax in accordance with-
(i) Schedule 7A of the Income Tax Act 1967 of Malaysia or sections 22, 23, 29, 35 and 37 of the Promotion of Investments Act 1986 of Malaysia and section 45 of that Act to the extent that it relates to sections 21, 22, 26, or 30Q of the Investment Incentives Act 1968, so far as the sections were in force on, and have not been modified since, the date of signature of the Protocol first amending the Agreement or have been modified only in minor respects so as not to affect their general character; or
(ii) any other provisions which may subsequently be agreed in an Exchange of Letters between the Governments of the Contracting States to be of a substantially similar character;
(b) in the case of interest derived by a resident of Australia which is exempt from Malaysian tax in accordance with paragraph 3 of Article 11, the amount which, under the law of Malaysia and in accordance with this Agreement, would have been payable as Malaysian tax if the interest were interest to which paragraph 3 of Article 11 did not apply, and if the tax referred to in paragraph 2 of Article 11 were not to exceed 10 per cent of the gross amount of the interest; and
(c) in the case of royalties derived by a resident of Australia, being approved industrial royalties which are exempt from Malaysian tax in accordance with paragraph 3 of Article 12, the amount which, under the law of Malaysia and in accordance with this Agreement, would have been payable as Malaysian tax if the royalties were royalties to which paragraph 3 of Article 12 did not apply and if the tax referred to in paragraph 2 of Article 12 were not to exceed 10 per cent of the gross amount of the royalties.6.
(a) For the purposes of subparagraph (a) or (b) of paragraph 3, Malaysian tax forgone which answers the description in subparagraph (a) of paragraph 5 shall be deemed to be Malaysian tax paid.
(b) For the purposes of subparagraph (a) of paragraph 3, Malaysian tax forgone which answers the description in subparagraph (b) or (c) of paragraph 5 shall be deemed to be Malaysian tax paid.7. Paragraphs 5 and 6 shall apply only in relation to income derived in any of the 5 years of income beginning with the year of income that commenced on 1 July 1987 and in any later year of income that may be agreed in an Exchange of Letters for this purpose by the Governments of the Contracting States, or their authorised representatives.
9. Where royalties derived by a resident of Australia are, as film rentals, subject to the cinematograph film-hire duty in Malaysia, that duty shall, for the purposes of subparagraph (a) of paragraph 3, be deemed to be Malaysian tax.
Art 23 amended by Sch 16B (the second Malaysian Protocol) and substituted by Sch 16A (the Malaysian Protocol).
ARTICLE 24 Mutual Agreement Procedure
1.
Where a resident of one of the Contracting States considers that the actions of the competent authority of one or both of the Contracting States result or will result for him in taxation not in accordance with this Agreement, he may, notwithstanding the remedies provided by the taxation laws of those States, present his case to the competent authority of the Contracting State of which he is a resident. The case must be presented within two years from the first notification of the action.
2.
The competent authority shall endeavour, if the taxpayer's claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement. If the claim is made within six years of the end of the year of assessment or year of tax, as the case may be, the solution so reached shall be implemented notwithstanding any time limits in the taxation laws of the Contracting States.
3.
The competent authorities of the Contracting States shall jointly endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of this Agreement.
4.
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
5.
For the purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of this Agreement may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph 3 of this Article or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States.HistoryArt 24 amended by Sch 16B (the second Malaysian Protocol) Art 6, by inserting para 5, applicable in relation to income of any year of income beginning on or after 1 July 2004.
ARTICLE 25 Exchange of Information
1.
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or for the prevention of fraud or for the administration of statutory provisions against legal avoidance in relation to the taxes to which this Agreement applies. Any information so exchanged shall be treated as secret and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment, collection, enforcement or prosecution in respect of, or the determination of appeals in relation to, those taxes to which this Agreement applies.
2.
In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation-
(a) to carry out any administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information the disclosure of which would be contrary to public policy.
ARTICLE 26 Diplomatic and Consular Officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special agreements.ARTICLE 27 Limitation of Relief
1.
Where this Agreement provides (with or without other conditions) that income from sources in a Contracting State shall be relieved wholly or partly from tax in that State, and under the laws in force in the other Contracting State the said income is subject to tax by reference to the amount thereof which is remitted to or received in that other State and not by reference to the full amount thereof, then the relief to be allowed under this Agreement in the first-mentioned State shall apply only to so much of the income as is remitted to or received in that other State;
Provided that where-
(a) in accordance with the foregoing provisions of this Article, relief has not been allowed in the first instance in the first-mentioned State in respect of an amount of income; and
(b) that amount of income has subsequently been remitted to or received in the other State and is thereby subject to tax in that other State,the competent authority of the first-mentioned State shall, subject to any laws thereof for the time being in force limiting the time and setting out the method for the making of a refund of tax, allow relief in respect of that amount of income in accordance with the appropriate provisions of this Agreement.
2.
Persons entitled to a particular tax treatment under:
(a) a law of one of the Contracting States which has been identified in an Exchange of Letters between the Contracting States; or
(b) any law substantially similar to such an identified law which is subsequently enacted by the relevant Contracting State,shall not be entitled to any benefit of this Agreement.
3.
In the event of either Contracting State becoming aware of a substantially similar law of the type referred to in subparagraph (b) of paragraph 2, the Contracting States shall consult each other with a view to identifying such law in an Exchange of Letters.HistoryArt 27 amended by Sch 16B (the second Malaysian Protocol) Art 7, by numbering the existing para as 1 and inserting paras 2 and 3, applicable in relation to income of any year of income beginning on or after 1 July 2004.
ARTICLE 28 Entry into Force
This Agreement shall come into force on the date on which the Government of Australia and the Government of Malaysia exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in Malaysia, as the case may be, and thereupon this Agreement shall have effect-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in respect of income derived on or after 1 July 1979;
(ii) in respect of other Australian tax, for any year of income beginning on or after 1 July 1979;
(b) in Malaysia-
in respect of Malaysian tax, for the year of assessment beginning on 1 January 1980, and subsequent years of assessment.ARTICLE 29 Termination
This Agreement shall continue in effect indefinitely, but the Government of Australia or the Government of Malaysia may on or before 30 June in any calendar year after the year 1982 give to the other Government through the diplomatic channel written notice of termination and, in that event this Agreement shall cease to be effective-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in respect of income derived on or after 1 July in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, for any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in Malaysia-
in respect of Malaysian tax, for the year of assessment beginning on 1 January in the second calendar year next following that in which the notice of termination is given, and subsequent years of assessment.IN WITNESS WHEREOF the undersigned, duly authorized thereto, have signed this Agreement.
DONE in duplicate in the English and the Bahasa Malaysia language, both texts being equally authentic, at Canberra this twentieth day of August One thousand nine hundred and eighty.
JOHN HOWARD
FOR THE GOVERNMENT OF AUSTRALIAAWANG BIN HASSAN
FOR THE GOVERNMENT OF MALAYSIA
Sch 16 inserted by No 28 of 1981.
(Repealed by No 45 of 2011)
History
Sch 16A repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Malaysian Protocol from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 16A formerly read:
SCHEDULE 16A - Malaysian Protocol
Note: See section 3
PROTOCOL AMENDING THE AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF MALAYSIA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1
Article 3 of the Agreement is amended by:
(a) deleting subparagraphs (a) and (b) of paragraph 1 and substituting the following:; and
"(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; andand 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 exploitation of any of the natural resources of the seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "Malaysia" means the territories of the Federation of Malaysia, the territorial waters of Malaysia and the sea-bed and subsoil of the territorial waters, and includes any area extending beyond the limits of the territorial waters of Malaysia, and the sea-bed and subsoil of any such area, which has been or may hereafter be designated under the laws of Malaysia and in accordance with international law as an area over which Malaysia has sovereign rights for the purposes of exploring and exploiting the natural resources, whether living or non-living;"
(b) deleting the full stop at the end of paragraph 3 and adding "from time to time in force."ARTICLE 2
Article 5 of the Agreement is amended by:
(a) deleting "or" immediately following subparagraph (a) of paragraph 4;
(b) deleting the full stop at the end of subparagraph (b) of paragraph 4 and substituting "; or"; and
(c) adding after subparagraph (b) of paragraph 4 the following subparagraph:
"(c) it furnishes services, including consultancy services, in that other State through employees or other personnel engaged by the enterprise for such purpose, but only where those activities continue (for the same or a connected project) within the other State for a period or periods aggregating more than three months within any twelve-month period."ARTICLE 3
Article 6 of the Agreement is amended by deleting paragraph 2 and substituting the following:
"2.
In this Article, the word "land" shall have the meaning which it has under the law of the Contracting State in which the land in question is situated; it shall include any estate or direct interest in land whether improved or not. A right to receive variable or fixed payments either as consideration for the exploitation of or the right to explore for or exploit, or in respect of the exploitation of, mineral deposits, oil or gas wells, quarries or other places of extraction or exploitation of natural resources or for the exploitation of, or the right to exploit or to fell any standing trees, plants or forest produce shall be deemed to be an estate or direct interest in land situated in the Contracting State in which the mineral deposits, oil or gas wells, quarries, natural resources, or standing trees, plants or forest produce, as the case may be, are situated or where the exploration may take place."ARTICLE 4
Article 7 of the Agreement is amended by adding after paragraph 7 the following paragraph:
"8.
Where:
(a) a resident of one of the Contracting States is beneficially entitled, whether directly or indirectly through one or more trusts, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee has, in accordance with the principles of Article 5, a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in that other State by that resident through a permanent establishment situated therein and the resident's share of business profits shall be attributed to that permanent establishment."
ARTICLE 5
Article 11 of the Agreement is amended by:
(a) deleting the words "or a long-term loan" in paragraph 3; and
(b) adding after paragraph 7 the following paragraph:
"8. Notwithstanding the provisions of paragraph 2, interest derived from the investment of official reserve assets by the Government of a Contracting State or by a bank performing central banking functions in a Contracting State shall be exempt from tax in the other Contracting State."ARTICLE 6
Article 13 of the Agreement is deleted and substituted with the following:"ARTICLE 13 Alienation of Property
1.
Income, profits or gains derived by a resident of one of the Contracting States from the alienation of land as defined in Article 6 and, as provided in that Article, situated in the other Contracting State may be taxed in that other State.
2.
Income, profits or gains from the alienation of property, other than land as defined in Article 6, that forms part of the business property of a permanent establishment which an enterprise of one of the Contracting States has in the other Contracting State, including income, profits or gains from the alienation of such a permanent establishment (alone or with the whole enterprise), may be taxed in that other State.
3.
Income, profits or gains from the alienation of ships or aircraft operated in international traffic, or of property other than land as defined in Article 6 pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise which operated those ships or aircraft is a resident.
4.
Income, profits or gains derived by a resident of a Contracting State from the alienation of any shares or other interests in a company, or of an interest of any kind in a partnership, trust or other entity, where the value of the assets of such entity, whether they are held directly or indirectly (including through one or more interposed entities, such as, for example, through a chain of companies), is principally attributable to land as defined in Article 6 and, as referred to in that Article, situated in the other Contracting State, may be taxed in that other State.
5.
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of profits or gains of a capital nature derived from the alienation of property other than that to which any of paragraphs 1, 2, 3 and 4 apply."
ARTICLE 7
Article 20 of the Agreement is amended by:
(a) deleting "Students" in the heading and substituting "Students and Trainees"; and
(b) inserting "or a trainee" after "student".ARTICLE 8
Article 22 of the Agreement is amended by:
(a) deleting "Sources of Income" in the heading and substituting "Sources of Income and Gains"; and
(b) inserting "or gains" after "Income" in the first line.ARTICLE 9
Article 23 of the Agreement is deleted and substituted with the following:"ARTICLE 23 Methods of Elimination of Double Taxation
1.
The laws in force in each of the Contracting States shall continue to govern the taxation of income in that Contracting State except where provision to the contrary is made in this Agreement. Where income is subject to tax in both Contracting States, relief from double taxation shall be given in accordance with the following paragraphs.
2.
In the case of Malaysia, subject to the law of Malaysia regarding the allowance as a credit against Malaysian tax of tax payable in any country other than Malaysia, the amount of Australian tax payable under the law of Australia and in accordance with the provisions of this Agreement, by a resident of Malaysia in respect of income from sources within Australia shall be allowed as a credit against Malaysian tax payable in respect of that income. Where such income is a dividend paid by a company which is a resident of Australia to a company which is a resident of Malaysia and which owns not less than 10 per cent of the voting shares of the company paying the dividend, the credit shall take into account Australian tax payable by that company in respect of its income out of which the dividend is paid. The credit shall not, however, exceed that part of the Malaysian tax, as computed before the credit is given which is appropriate to such item of income.
3.
(a) Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof),Malaysian tax paid under the law of Malaysia and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Malaysia shall be allowed as a credit against Australian tax payable in respect of that income.
(b) Where a company which is a resident of Malaysia and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 per cent of the voting power of the first-mentioned company, the credit referred to in subparagraph (a) shall include the Malaysian tax paid by that first-mentioned company in respect of that portion of its profits out of which the dividend is paid.
4.
Where the income or profits on which an enterprise of one of the Contracting States has been charged to tax in that Contracting State are also included in the income or profits of an enterprise of the other Contracting State as being income or profits which, because of the conditions operative between the two enterprises, might have been expected to accrue to the enterprise of that other Contracting State if the enterprises had been independent enterprises dealing at arm's length, the income or profits so included shall be treated for the purposes of this Article as income or profits of the enterprise of the first-mentioned Contracting State from a source in the other Contracting State and credit shall be given in accordance with this Article in respect of the extra tax chargeable in that other Contracting State as a result of the inclusion of such income or profits.
5.
For the purposes of paragraph 6, the term "Malaysian tax forgone" means-
(a) an amount which, under the laws of Malaysia and in accordance with this Agreement, would have been payable as Malaysian tax on income had that income not been exempted either wholly or partly from Malaysian tax in accordance with-
(i) Schedule 7A of the Income Tax Act 1967 of Malaysia or sections 22, 23, 29, 35 and 37 of the Promotion of Investments Act 1986 of Malaysia and section 45 of that Act to the extent that it relates to sections 21, 22, 26, or 30Q of the Investment Incentives Act 1968, so far as the sections were in force on, and have not been modified since, the date of signature of the Protocol first amending the Agreement or have been modified only in minor respects so as not to affect their general character; or
(ii) any other provisions which may subsequently be agreed in an Exchange of Letters between the Governments of the Contracting States to be of a substantially similar character;
(b) in the case of interest derived by a resident of Australia which is exempt from Malaysian tax in accordance with paragraph 3 of Article 11, the amount which, under the law of Malaysia and in accordance with this Agreement, would have been payable as Malaysian tax if the interest were interest to which paragraph 3 of Article 11 did not apply, and if the tax referred to in paragraph 2 of Article 11 were not to exceed 10 per cent of the gross amount of the interest; and
(c) in the case of royalties derived by a resident of Australia, being approved industrial royalties which are exempt from Malaysian tax in accordance with paragraph 3 of Article 12, the amount which, under the law of Malaysia and in accordance with this Agreement, would have been payable as Malaysian tax if the royalties were royalties to which paragraph 3 of Article 12 did not apply and if the tax referred to in paragraph 2 of Article 12 were not to exceed 10 per cent of the gross amount of the royalties.
6.
(a) For the purposes of subparagraph (a) or (b) of paragraph 3, Malaysian tax forgone which answers the description in subparagraph (a) of paragraph 5 shall be deemed to be Malaysian tax paid.
(b) For the purposes of subparagraph (a) of paragraph 3, Malaysian tax forgone which answers the description in subparagraph (b) or (c) of paragraph 5 shall be deemed to be Malaysian tax paid.
7.
Paragraphs 5 and 6 shall apply only in relation to income derived in any of the 5 years of income beginning with the year of income that commenced on 1 July 1987 and in any later year of income that may be agreed in an Exchange of Letters for this purpose by the Governments of the Contracting States, or their authorised representatives.
8.
If in an Agreement for the avoidance of double taxation that is subsequently made between Australia and a third State, Australia should agree-
(a) in relation to dividends that are derived by a company which is a resident of Australia from a company which is a resident of the third State, to give credit for tax paid on the profits out of which the dividends are paid on the basis of a test of beneficial ownership by the first-mentioned company of less than 10 per cent of the paid-up share capital of the second-mentioned company; or
(b) to give relief from Australian tax of the kind that is provided for in relation to Malaysia in paragraphs 5 and 6, on a basis that, other than in minor respects, is more favourable in relation to the third State than that so provided for,the Government of Australia shall immediately inform the Government of Malaysia and shall enter into negotiations with the Government of Malaysia with a view to providing treatment in relation to Malaysia comparable with that provided in relation to that third State.
9.
Where royalties derived by a resident of Australia are, as film rentals, subject to the cinematograph film-hire duty in Malaysia, that duty shall, for the purposes of subparagraph (a) of paragraph 3, be deemed to be Malaysian tax.
10.
Where gains derived by a resident of Australia are subject to real property gains tax in Malaysia, that tax shall, for the purposes of subparagraph 3(a), be deemed to be Malaysian tax."
ARTICLE 10 Entry into force
1.
This Protocol, which shall form an integral part of the Agreement, shall enter into force on the last of the dates on which the Contracting States exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Protocol the force of law in Australia and in Malaysia respectively, and thereupon this Protocol shall, subject to paragraph 2, have effect:
(a) in Australia:
(i) subject to subparagraph 1(a)(ii), for the purposes of Article 9 of the Protocol in respect of tax on income of any year of income beginning on or after 1 July 1987;
(ii) to the extent that Article 9 of the Protocol has application in respect of Malaysian tax forgone in accordance with section 35 or 37 of the Promotion of Investments Act 1986 of Malaysia, in respect of tax on income of any year of income beginning on or after 1 July 1985;
(iii) in the case of subparagraph (c) of Article 2 of the Protocol, in respect of tax on income of any year of income beginning on or after 1 July 1993; and
(iv) in any other case, in relation to income of any year of income beginning on or after 1 July in the calendar year next following that in which this Protocol enters into force;
(b) in Malaysia:
(i) for the purposes of Article 9 of the Protocol in respect of Malaysian tax for any year of assessment beginning on or after 1 January 1988;
(ii) in the case of subparagraph (c) of Article 2 of the Protocol in respect of tax for any year of assessment beginning on or after 1 January 1994; and
(iii) in any other case, in respect of Malaysian tax for any year of assessment beginning on or after 1 January in the second calendar year following the calendar year in which this Protocol enters into force.
2.
Where any provision of the Agreement that is affected by this Protocol would have afforded any greater relief from tax than is afforded by the amendments made by this Protocol, that provision shall continue to have effect:
(a) in Australia, for any year of income; and
(b) in Malaysia, for any year of assessmentbeginning, in either case, before the entry into force of this Protocol.
IN WITNESS WHEREOF the undersigned, being duly authorised, have signed this Protocol.
DONE in duplicate in English and Bahasa Malaysia, both texts being equally authentic, at Sydney this second day of August, One thousand nine hundred and ninety-nine.
FOR THE GOVERNMENT OF AUSTRALIA:
MARK VAILE [Signatures omitted]FOR THE GOVERNMENT OF MALAYSIA:
DATO' SERI RAFIDAH AZIZ
Sch 16A inserted by No 149 of 1999. The Malaysian protocol entered into force on 27 June 2000.
(Repealed by No 45 of 2011)
History
Sch 16B repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Second Malaysian Protocol from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 16B formerly read:
SCHEDULE 16B - Second Malaysian Protocol
Note: See section 3.
SECOND PROTOCOL AMENDING THE AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF MALAYSIA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AS AMENDED BY THE FIRST PROTOCOL OF 2 AUGUST 1999
ARTICLE 1
Article 9 of the Agreement, as amended, is amended by adding after paragraph 2 the following paragraph:
"(3)
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of the provisions of paragraph 1 or 2, in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might reasonably have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might reasonably have been expected to have operated between independent enterprises dealing wholly independently with one another, then the firstmentioned State shall make an appropriate adjustment to the amount of tax charged on thoseprofits in the firstmentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other."ARTICLE 2
Article 10 of the Agreement, as amended, is deleted and substituted with the following:"ARTICLE 10 Dividends
1.
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
However, those dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident, and according to the law of that State, but:
(a) in Australia:
(i) no tax shall be charged on dividends to the extent to which those dividends have been "franked" in accordance with Australia's law relating to tax, if the person beneficially entitled to those dividends is a company (other than a partnership) which holds directly at least 10 per cent of the voting power in the company paying the dividends; and
(ii) tax charged shall not exceed 15 per cent of the gross amount of the dividends to the extent to which those dividends are not within subparagraph (a)(i); and
(b) in Malaysia:
no tax shall be charged on dividends paid by a company which is resident in Malaysia for the purposes of Malaysian tax being dividends to which a resident of Australia is beneficially entitled, in addition to the tax chargeable in respect of the income or profits of the company paying the dividends.
3.
For the purposes of paragraph 2, if the relevant law in either Contracting State at the date of signature of this Protocol is varied otherwise than in minor respects so as not to affect its general character, the Contracting States shall consult each other with a view to agreeing to any amendment of that paragraph that may be appropriate.
4.
The term "dividends" as used in this Article means income from shares, as well as other amounts which are subjected to the same taxation treatment as income from shares by the law of the State of which the company making the distribution is a resident for the purposes of its tax.
5.
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated in that other State, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment. In that case the provisions of Article 7 shall apply.
6.
Where a company which is a resident of one of the Contracting States derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company - being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled - except insofar as the holding in respect of which, such dividends are paid is effectively connected with a permanent establishment situated in that other State, even if the dividends paid consist wholly or partly of profits or income arising in such other State. This paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Malaysia for the purposes of Malaysian tax.
7.
Dividends paid by a company which is a resident of Malaysia shall include dividends paid by a company which is a resident of Singapore which for the purpose of those dividends has declared itself to be a resident of Malaysia, but shall not include dividends paid by a company which is a resident of Malaysia which for the purpose of those dividends has declared itself to be a resident of Singapore."
ARTICLE 3
Article 12 of the Agreement, as amended, is amended by:
(a) deleting paragraphs 3, 8 and 9 and renumbering the paragraphs 1 to 6;
(b) deleting "paragraphs 1, 2 and 3" and substituting "paragraphs 1 and 2" in renumbered paragraph 3; and
(c) deleting "or" at the end of subparagraph (c) of renumbered paragraph 6, renumbering existing subparagraph "(d)" as "(f)" and inserting the following subparagraphs:
"(d) the use in connection with television, radio or other broadcasting, or the right to use in connection with such broadcasting, visual images or sounds, or both, transmitted by:
(i) satellite; or
(ii) cable, optic fibre or similar technology;
(e) the use of, or the right to use, some or all of the part of the radiofrequency spectrum specified in a relevant licence; or"ARTICLE 4
Article 21 of the Agreement, as amended, is deleted and substituted with the following:"ARTICLE 21 Other Income
1.
Items of income of a resident of one of the Contracting States, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that State.
2.
The provisions of paragraph 1 shall not apply to income, other than income from land as defined in paragraph 2 of Article 6, derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment situated in the other Contracting State. In that case the provisions of Article 7 shall apply.
3.
Notwithstanding the provisions of paragraphs 1 and 2, items of income of a resident of one of the Contracting States not dealt with in the foregoing articles of this Agreement from sources in the other Contracting State may also be taxed in the other Contracting State."
ARTICLE 5
Article 23 of the Agreement, as amended, is amended by:
(a) deleting paragraphs 4 to 7 and substituting the following:;
"4.
For the purposes of paragraph 5, the term "Malaysian tax forgone" means an amount which, under the laws of Malaysia and in accordance with this Agreement, would have been payable as Malaysian tax on income had that income not been exempted either wholly or partly from Malaysian tax in accordance with Schedules 7A and 7B of the Income Tax Act 1967 of Malaysia or sections 22, 23, 29, 29A, 29B, 29C, 29D, 29E, 29F, 29G, 29H, 31E, 35, 37 and 41B of the Promotion of Investments Act 1986 of Malaysia and section 45 of that Act to the extent that it relates to sections 21, 22, 26, or 30Q of the Investment Incentives Act 1968, so far as the sections were in force on, and have not been modified since, the date of signature of the Protocol second amending the Agreement or have been modified only in minor respects so as not to affect their general character.
5.
Notwithstanding the operation of paragraph 4, Malaysian tax forgone shall not be deemed to have been paid in respect of income derived from:
(a) banking, insurance, consulting, accounting, auditing or similar services; or
(b) the operation of ships or aircraft, other than ships or aircraft operated principally from places in Malaysia and used solely in carrying on a business in Malaysia; or
(c) any scheme entered into by an Australian resident with the purpose of using Malaysia as a conduit for income or as a location of property in order to evade or avoid Australian tax through the exploitation of the Australian foreign tax credit provisions or to confer a benefit on a person who is neither a resident of Australia, nor of Malaysia.
6.
For the purposes of subparagraph (a) or (b) of paragraph 3, Malaysian tax forgone which answers the description in paragraph 4 and is not of a type referred to in paragraph 5 shall be deemed to be Malaysian tax paid.
7.
Paragraphs 4, 5 and 6 shall not apply in relation to income derived in any year of income after the year of income that ends on 30 June 2003."
(b) deleting the words "5 and 6" and substituting "4 and 6" in subparagraph (b) of paragraph 8; and
(c) deleting paragraph 9 and renumbering paragraph 10 as 9.ARTICLE 6
Article 24 of the Agreement, as amended, is amended by adding after paragraph 4 the following paragraph:
"5.
For the purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of this Agreement may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph 3 of this Article or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States."ARTICLE 7
Article 27 of the Agreement, as amended, is amended by numbering the existing paragraph as 1 and adding after that paragraph, the following:
"2.
Persons entitled to a particular tax treatment under:
(a) a law of one of the Contracting States which has been identified in an Exchange of Letters between the Contracting States; or
(b) any law substantially similar to such an identified law which is subsequently enacted by the relevant Contracting State,shall not be entitled to any benefit of this Agreement.
3.
In the event of either Contracting State becoming aware of a substantially similar law of the type referred to in subparagraph (b) of paragraph 2, the Contracting States shall consult each other with a view to identifying such law in an Exchange of Letters."ARTICLE 8
This Protocol, which shall form an integral part of the Agreement, as amended, shall enter into force on the last of the dates on which the Contracting States exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Protocol the force of law in Australia and in Malaysia respectively, and thereupon this Protocol shall, have effect:
(a) in Australia:
(i) for the purposes of paragraph (a) of Article 5 of the Protocol, in respect of tax on income of any year of income beginning on or after 1 July 1992; and
(ii) in any other case, in relation to income of any year of income beginning on or after 1 July in the calendar year next following that in which this Protocol enters into force;
(b) in Malaysia:
(i) for the purposes of paragraph (a) of Article 5 of the Protocol, in respect of Malaysian tax for any year of assessment beginning on or after 1 January 1993; and
(ii) in any other case, in respect of Malaysian tax for any year of assessment beginning on or after 1 January in the calendar year next following that in which this Protocol enters into force.IN WITNESS WHEREOF the undersigned, being duly authorised, have signed this Protocol.
DONE in duplicate in English and Bahasa Malaysia, both texts being equally authentic, at Genting Highlands, this 28th day of July, Two thousand and two.
FOR THE GOVERNMENT OF AUSTRALIA:
Mark Vaile [Signatures omitted]FOR THE GOVERNMENT OF MALAYSIA:
Dato' Seri Rafidah Aziz
Sch 16B inserted by No 129 of 2002.
(Repealed by No 45 of 2011)
History
Sch 17 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Swedish Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 17 formerly read:
SCHEDULE 17 - Swedish Agreement
Section 3
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF SWEDEN FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Agreement shall apply are:
(a) in Australia:
the Australian income tax including the additional tax upon the undistributed amount of the distributable income of a private company;
(b) in Sweden:
(i) the State income tax, including sailors' tax and coupon tax;
(ii) the tax on undistributed profits of companies and the tax on distribution in connection with reduction of share capital or the winding-up of a company;
(iii) the tax on public entertainers; and
(iv) the communal income tax.
(2)
This Agreement shall also apply to any identical or substantially similar taxes which are imposed by either Contracting State after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authority of each Contracting State shall notify the competent authority of the other Contracting State of any substantial changes which have been made in the laws of his State relating to the taxes to which this Agreement applies.
ARTICLE 3 General Definitions
(1)
In this Agreement, unless the context otherwise requires:
(a) the term "Australia" means the Commonwealth of Australia and, when used in a geographical sense, includes:
(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 Coral Sea Islands Territory; and
(vi) any area adjacent to the territorial limits of Australia or of the said Territories in respect of which there is for the time being in force, consistently with international law, a law of Australia or of a State or part of Australia or of a Territory aforesaid dealing with the exploitation of any of the natural resources of the sea-bed and subsoil of the continental shelf;
(b) the term "Sweden" means the Kingdom of Sweden and includes any area outside the territorial sea of Sweden within which under the laws of Sweden and in accordance with international law the rights of Sweden with respect to the exploration and exploitation of the natural resources on the sea-bed or in its subsoil may be exercised;
(c) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" mean Australia or Sweden, as the context requires;
(d) the term "person" means an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is assimilated to a body corporate for tax purposes;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Sweden, as the context requires;
(g) the term "tax" means Australian tax or Swedish tax, as the context requires;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "Swedish tax" means tax imposed by Sweden, being tax to which this Agreement applies by virtue of Article 2;
(j) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or his authorized representative, and in the case of Sweden, the Minister of the Budget or his authorized representative.
(2)
In this Agreement, the terms "Australian tax" and "Swedish tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes to which this Agreement applies by virtue of Article 2.
(3)
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State relating to the taxes to which this Agreement applies.
ARTICLE 4 Residence
(1)
For the purposes of this Agreement, a person is a resident of one of the Contracting States:
(a) in the case of Australia, subject to paragraph (2), if the person is a resident of Australia for the purposes of Australian tax; and
(b) in the case of Sweden, if the person is subject to unlimited tax liability in Sweden.
(2)
In relation to income from sources in Sweden, a person who is subject to Australian tax on income which is from sources in Australia shall not be treated as a resident of Australia unless the income from sources in Sweden is subject to Australian tax or, if that income is exempt from Australian tax, it is so exempt solely because it is subject to Swedish tax.
(3)
Where by reason of the preceding provisions of this Article an individual is a resident of both Contracting States, then his status shall be determined in accordance with the following rules:
(a) he shall be deemed to be a resident solely of the Contracting State in which he has a permanent home available to him;
(b) if he has a permanent home available to him in both Contracting States, or if he does not have a permanent home available to him in either of them, he shall be deemed to be a resident solely of the Contracting State with which his personal and economic relations are the closer.
(4)
Where by reason of the provisions of paragraph (1), a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, quarry or any other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property;
(h) a building site or construction, installation or assembly project which exists for more than twelve months.
(3)
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(4)
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if:
(a) it carries on supervisory activities in that State for more than twelve months in connection with a building site, or a construction, installation or assembly project which is being undertaken in that State; or
(b) substantial equipment is being used in that State for more than twelve months by, for or under contract with the enterprise in exploration for, or exploitation of, natural resources, or in activities connected with such exploration or exploitation.
(5)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (6) applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if:
(a) he has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless his activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting, he manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
(6)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of his business as such a broker or agent.
(7)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise) shall not of itself make either company a permanent establishment of the other.
(8)
The principles set forth in paragraphs (1) to (7) inclusive shall be applied in determining for the purposes of paragraph (6) of Article 11 and paragraph (5) of Article 12 of this Agreement whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
ARTICLE 6 Income from Real Property
(1)
Income from real property, including royalties and other payments in respect of the operation of mines or quarries or of the exploitation of any natural resource, may be taxed in the Contracting State in which the real property, mines, quarries, or natural resources are situated.
(2)
Income from a lease of land and income from any other direct interest in or over land, whether or not improved, shall be regarded as income from real property situated where the land to which the lease or other direct interest relates is situated.
(3)
The provisions of paragraphs (1) and (2) shall also apply to the income from real property of an enterprise and to income from real property used for the performance of professional services.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State, but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph (3), where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprises, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
If the information available to the taxation authority of a Contracting State is inadequate to determine the profits to be attributed to the permanent establishment of an enterprise, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person provided that that law shall be applied, so far as the information available to the taxation authority permits, in accordance with the principles of this Article.
(6)
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
(7)
Nothing in this Article shall affect the operation of any law of a Contracting State relating to taxation of profits from insurance with non-residents provided that if the relevant law in force in either State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
ARTICLE 8 Shipping and Air Transport
(1)
Profits from the operation of ships or aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1), such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
(3)
The provisions of paragraphs (1) and (2) shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organisation or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
ARTICLE 9 Associated Enterprises
(1)
Where:
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
If the information available to the taxation authority of a Contracting State is inadequate to determine the profits to be attributed to an enterprise, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person, provided that that law shall be applied, so far as the information available to the taxation authority permits, in accordance with the principles of this Article.
(3)
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph (1) or (2), in the profits of an enterprise of the other Contracting State and taxed accordingly, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the first-mentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement, and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends.
(3)
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the taxation law of the Contracting State of which the company making the distribution is a resident.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State; provided that this paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Sweden for the purposes of Swedish tax.
(6)
Subject to the provisions of this Agreement, a Contracting State may impose on the income of a company which is a resident of the other Contracting State, tax in addition to the tax which would be chargeable on the taxable income of a company which is a resident of the first-mentioned State, provided that any additional tax so imposed by the first-mentioned State shall not exceed 15 per cent of the amount by which the taxable income of the year of income exceeds the tax which would have been payable on that taxable income if the company had been a resident of the first-mentioned State.
(7)
In this Article a reference to a company which is a resident of one of the Contracting States for the purposes of its tax is, in the case of Sweden, a reference to a company which is subject to unlimited tax liability in Sweden.
ARTICLE 11 Interest
(1)
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
Notwithstanding the provisions of paragraph (2), interest derived by the Government of a Contracting State, or by any other body exercising governmental functions in, or in a part of, a Contracting State, or by the central bank of a Contracting State, or, in the case of Sweden, the National Debt Office, shall be exempt from tax in the other Contracting State.
(4)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to income from money lent by the taxation law of the Contracting State in which the income arises.
(5)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the indebtedness in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(6)
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated. In this paragraph, a reference to a person who is a resident of a Contracting State is, in relation to a company, a reference to a company which, in the case of Australia, is a resident of Australia for the purposes of its tax, or, in the case of Sweden, is subject to unlimited tax liability in Sweden.
(7)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 12 Royalties
(1)
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
(3)
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 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 paragraph (a), any such equipment as is mentioned in paragraph (b) or any such knowledge or information as is mentioned in paragraph (c);
(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 of a property or right referred to in this paragraph.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid or credited is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State. Where, however, the person paying the royalties, whether he is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated. In this paragraph, a reference to a person who is a resident of a Contracting State is, in relation to a company, a reference to a company which, in the case of Australia, is a resident of Australia for the purposes of its tax, or, in the case of Sweden is subject to unlimited tax liability in Sweden.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties or between both of them and some other person the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of Property
(1)
Income from the alienation of real property may be taxed in the Contracting State in which that property is situated.
(2)
For the purposes of this Article:
(a) the term "real property" shall include:
(i) a lease of land or any other direct interest in or over land;
(ii) rights to exploit, or to explore for, natural resources; and
(iii) shares or comparable interests in a company, the assets of which consist wholly or principally of direct interests in or over land in one of the Contracting States or of rights to exploit, or to explore for, natural resources in one of the Contracting States;
(b) real property shall be deemed to be situated:
(i) where it consists of direct interests in or over land - in the Contracting State in which the land is situated;
(ii) where it consists of rights to exploit, or to explore for, natural resources - in the Contracting State in which the natural resources are situated or the exploration may take place; and
(iii) where it consists of shares or comparable interests in a company, the assets of which consist wholly or principally of direct interests in or over land in one of the Contracting States or of rights to exploit, or to explore for, natural resources in one of the Contracting States - in the Contracting State in which the assets or the principal assets of the company are situated.
(3)
Subject to the provisions of paragraph (1), income from the alienation of capital assets of an enterprise of one of the Contracting States or available to a resident of one of the Contracting States for the purpose of performing professional services or other independent activities shall be taxable only in that State, but, where those assets form part of the business property of a permanent establishment or fixed base situated in the other Contracting State, such income may be taxed in that other State.
ARTICLE 14 Independent Personal Services
(1)
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base.
(2)
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 18, 19 and 20, salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the year of income of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State; and
(d) the remuneration is, or upon application of this Article will be, subject to tax in the first-mentioned State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic may be taxed in the Contracting State in which the place of effective management of the enterprise is situated. Where a resident of Sweden derived remuneration in respect of employment exercised aboard an aircraft operated in international traffic by the air transport consortium Scandinavian Airlines System (SAS), such remuneration shall be taxable only in Sweden.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a resident of one of the Contracting States in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
(2)
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
(3)
Where the services of an entertainer referred to in paragraph (1) are provided in a Contracting State by an enterprise of the other Contracting State, the profits derived from providing those services by such an enterprise may, notwithstanding anything contained in this Agreement, be taxed in the first-mentioned State.
ARTICLE 18 Pensions and Annuities
(1)
Subject to the provisions of paragraph (3), any pension or annuity paid to a resident of one of the Contracting States shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
(3)
Pensions paid by one of the Contracting States or a political subdivision or local authority of that State to any individual in respect of services rendered to that State, political subdivision or local authority, as the case may be, and pensions paid under the social security scheme of one of the Contracting States may be taxed in that State. The provisions of this paragraph shall apply only to individuals who are citizens of the Contracting State from which the payments are made.
(4)
Any alimony or other maintenance payment arising in one of the Contracting States and paid to a resident of the other Contracting State, shall be taxable only in the first-mentioned State.
ARTICLE 19 Government Service
(1)
Remuneration (other than a pension or annuity) paid by one of the Contracting States or a political subdivision or local authority of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
(2)
The provisions of paragraph (1) shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by one of the Contracting States or a political subdivision or local authority of that State. In such a case, the provisions of Article 15 or Article 16 as the case may be, shall apply.
ARTICLE 20 Professors and Teachers
(1)
A professor or teacher who visits a Contracting State for a period not exceeding two years for the purpose of teaching or carrying out advanced study or research at a university, college, school or other educational institution in that State and who immediately before that visit was a resident of the other Contracting State shall be exempt from tax in the first-mentioned State on any remuneration for such teaching, advanced study or research in respect of which he is, or upon the application of this article will be, subject to tax in the other State.
(2)
This Article shall not apply to remuneration which a professor or teacher receives for conducting research if the research is undertaken primarily for the private benefit of a specific person or persons.
ARTICLE 21 Students
Where a student, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of his education, receives payments from sources outside that other State for the purpose of his maintenance or education, those payments shall be exempt from tax in that other State.ARTICLE 22 Income Not Expressly Mentioned
(1)
Items of income, not expressly mentioned in the foregoing Articles, derived from sources in one of the Contracting States by a resident of the other Contracting State may be taxed in the first-mentioned State.
(2)
Subject to the provisions of paragraph (3), income derived by a person who is a resident of one of the Contracting States from sources in that Contracting State or from sources outside both Contracting States shall be taxable only in the Contracting State of which that person is a resident.
(3)
The provisions of paragraph (2) shall not apply to income derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
ARTICLE 23 Source of Income
(1)
Income derived by a resident of Sweden which, under any one or more of Articles 6 to 8, Articles 10 to 18 and Article 22 may be taxed in Australia, shall for the purposes of the income tax law of Australia be deemed to be income from sources in Australia.
(2)
Income derived by a resident of Australia which, under any one or more of Articles 6 to 8, Articles 10 to 18 and Article 22 may be taxed in Sweden, shall for the purposes of paragraph (1) of Article 24 and of the income tax law of Australia be deemed to be income from sources in Sweden.
ARTICLE 24 Methods of Elimination of Double Taxation
(1)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Swedish tax paid under the law of Sweden and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Sweden (not including, in the case of a dividend, tax paid in respect of the profits out of which the dividend is paid) shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
A company which is a resident of Australia is, in accordance with the provisions of the taxation law of Australia in force at the date of signature of this Agreement, entitled to a rebate in its assessment at the average rate of tax payable by the company in respect of dividends that are included in its taxable income and are received from a company which is a resident of Sweden. However, should the law so in force be amended so that the rebate in relation to the dividends ceases to be allowable under that law, credit shall be allowed under paragraph (1) to the first-mentioned company for the Swedish tax paid on the profits out of which the dividends are paid, as well as for the Swedish tax paid on the dividends for which credit is to be allowed under paragraph (1), but only if that company beneficially owns at least 10 per cent of the paid-up share capital of the second-mentioned company.
(3)
Subject to the provisions of paragraphs (4) and (5) of this Article, where a resident of Sweden derives income which, in accordance with the provisions of this Agreement may be taxed in Australia, Sweden shall allow as a deduction from the tax on the income of that person, an amount equal to the income tax paid in Australia. The deduction shall not, however, exceed that part of the income tax, as computed before the deduction is given, which is appropriate to the income which may be taxed in Australia.
(4)
Where a resident of Sweden derives income which, in accordance with the provisions of this Agreement, shall be taxable only in Australia, Sweden may include this income in the tax base but shall allow as a deduction from the income tax that part of the income tax which is appropriate to the income derived from Australia.
(5)
Notwithstanding the provisions of paragraph (1) of Article 10, dividends paid by a company which is a resident of Australia and to which a company which is a resident of Sweden is beneficially entitled shall be exempt from Swedish tax to the extent that the dividends would have been exempt under Swedish law if both companies had been Swedish companies. This exemption shall not be granted unless the principal part of the profits or income of the company paying the dividends arises, directly or indirectly, from business activities other than the management of securities and other similar movable property and such activities are carried on within Australia by the company paying the dividends or by a company in which it owns at least 25 per cent of the paid-up share capital.
ARTICLE 25 Mutual Agreement Procedure
(1)
Where a resident of one of the Contracting States considers that the actions of the taxation authority of one or both of the Contracting States result or will result for him in taxation not in accordance with this Agreement, he may, notwithstanding the remedies provided by the national laws of those States, present his case to the competent authority of the Contracting State of which he is a resident. The case must be presented within three years from the first notification of the action.
(2)
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the national laws of the Contracting States.
(3)
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the application of this Agreement.
(4)
The competent authorities of the Contracting States may communicate with each other directly forthe purpose of giving effect to the provisions of this Agreement.
ARTICLE 26 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the domestic laws of the Contracting States concerning the taxes to which this Agreement applies insofar as the taxation thereunder is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
(2)
In no case shall the provisions of paragraph (1) be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 27 Diplomatic and Consular Officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special agreements.ARTICLE 28 Entry into Force
This Agreement shall come into force on the date on which the Government of Australia and the Government of Sweden exchange notes at Stockholm through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in Sweden, as the case may be, and thereupon this Agreement shall have effect:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year immediately following that in which the Agreement enters into force;
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year immediately following that in which the Agreement enters into force;
(b) in Sweden, in respect of income derived on or after 1 January in the calendar year immediately following that in which the Agreement enters into force.ARTICLE 29 Termination
This Agreement shall continue in effect indefinitely, but the Government of Australia or the Government of Sweden may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Government through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in Sweden, in respect of income derived on or after 1 January in the calendar year next following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorized thereto, have signed this Agreement.
DONE in duplicate at Canberra this fourteenth day of January One thousand nine hundred and eighty-one in the English language.
JOHN HOWARD
FOR THE GOVERNMENT OF AUSTRALIAL. HEDSTRÖM
FOR THE GOVERNMENT OF SWEDEN
Sch 17 inserted by No 28 of 1981.
(Repealed by No 45 of 2011)
History
Sch 18 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Danish Agreement from thisAct, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 18 formerly read:
SCHEDULE 18 - Danish Agreement
Section 3
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE KINGDOM OF DENMARK FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Agreement shall apply are-
(a) in Australia:
the Australian income tax, including the additional tax upon the undistributed amount of the distributable income of a private company;
(b) in Denmark:
the income taxes to the State and to the municipalities (indkomstskatterne til staten og til kommunerne).
(2)
This Agreement shall also apply to any identical or substantially similar taxes which are imposed by either Contracting State after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authority of each Contracting State shall notify the competent authority of the other Contracting State of any substantial changes which have been made in the laws of his State relating to the taxes to which this Agreement applies.
ARTICLE 3 General Definitions
(1)
In this Agreement, unless the context otherwise requires-
(a) the term "Australia" means the Commonwealth of Australia and, when used in a geographical sense, includes-
(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 Coral Sea Islands Territory; and
(vi) any area adjacent to the territorial limits of Australia or of the said Territories in respect of which there is for the time being in force, consistently with international law, a law of Australia or of a State or part of Australia or of a Territory aforesaid dealing with the exploitation of any of the natural resources of the sea-bed and subsoil of the continental shelf;
(b) the term "Denmark" means the Kingdom of Denmark including any area outside the territorial sea of Denmark which in accordance with international law has been or may hereafter be designated under Danish laws as an area within which Denmark may exercise sovereign rights with respect to the exploration and exploitation of the natural resources of the sea-bed or its subsoil; the term does not comprise the Faroe Islands and Greenland;
(c) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" mean Australia or Denmark, as the context requires;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is treated as a body corporate or company for tax purposes;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Denmark, as the context requires;
(g) the term "tax" means Australian tax or Danish tax, as the context requires;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "Danish tax" means tax imposed by Denmark, being tax to which this Agreement applies by virtue of Article 2;
(j) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or his authorized representative, and in the case of Denmark, the Minister for Inland Revenue, Customs and Excise or his authorized representative.
(2)
In this Agreement, the terms "Australian tax" and "Danish tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes to which this Agreement applies by virtue of Article 2.
(3)
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State relating to the taxes to which this Agreement applies.
ARTICLE 4 Residence
(1)
For the purposes of this Agreement, a person is a resident of one of the Contracting States-
(a) in the case of Australia, subject to the provisions of paragraph (2), if the person is a resident of Australia for the purposes of Australian tax; and
(b) in the case of Denmark, if the person is liable to tax therein by reason of his domicile, residence, place of incorporation or any other criterion of a similar nature but not if he is liable to tax in Denmark in respect only of income from sources therein.
(2)
In relation to income from sources in Denmark, a person who is subject to Australian tax on income which is from sources in Australia shall not be treated as a resident of Australia unless the income from sources in Denmark is subject to Australian tax or, if that income is exempt from Australian tax, it is so exempt solely because it is subject to Danish tax.
(3)
Where by reason of the provisions of paragraph (1) an individual is a resident of both Contracting States, then his status shall be determined in accordance with the following rules:
(a) he shall be deemed to be a resident solely of the Contracting State in which he has a permanent home available to him;
(b) if he has a permanent home available to him in both Contracting States, or if he does not have a permanent home available to him in either of them, he shall be deemed to be a resident solely of the Contracting State in which he has an habitual abode;
(c) if he has an habitual abode in both Contracting States, or if he does not have an habitual abode in either of them, he shall be deemed to be a resident solely of the Contracting State with which his personal and economic relations are the closer.
(4)
Where by reason of the provisions of paragraph (1), a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which it is created.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially-
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property;
(h) a building site or construction, installation or assembly project which lasts for more than twelve months.
(3)
An enterprise shall not be deemed to have a permanent establishment merely by reason of-
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(4)
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if-
(a) it carries on supervisory activities in that State for more than twelve months in connection with a building site, or a construction, installation or assembly project which is being undertaken in that State; or
(b) substantial equipment is being used in that State for more than twelve months by, for or under contract with the enterprise in exploration for, or exploitation of, natural resources, or in activities connected with such exploration or exploitation.
(5)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (6) applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if-
(a) he has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless his activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting, he manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
(6)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of his business as such a broker or agent.
(7)
The fact that a company which is a resident of one of the Contracting States controlsor is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise) shall not of itself make either company a permanent establishment of the other.
(8)
The principles set forth in paragraphs (1) to (7) inclusive shall be applied in determining for the purposes of paragraph (5) of Article 11 and paragraph (5) of Article 12 of this Agreement whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
ARTICLE 6 Income from Real Property
(1)
Income from real property, including royalties and other payments in respect of the operation of mines or quarries or of the exploitation of any natural resource, may be taxed in the Contracting State in which the real property, mines, quarries, or natural resources are situated.
(2)
Income from a lease of land and income from any other direct interest in or over land, whether or not improved, shall be regarded as income from real property situated where the land to which the lease or other direct interest relates is situated.
(3)
The provisions of paragraphs (1) and (2) shall also apply to the income from real property of an enterprise and to income from real property used for the performance of professional services.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State, but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph (3), where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
Insofar as it has been customary in a Contracting State to determine the profits to be attributed to a permanent establishment on the basis of an apportionment of the total profits of the enterprise to its various parts, nothing in paragraph (2) shall preclude that Contracting State from determining the profits to be taxed by such an apportionment as may be customary; the method of apportionment adopted shall, however, be such that the result shall be in accordance with the principles contained in this Article.
(5)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(6)
If the information available to the competent authority of a Contracting State is inadequate to determine the profits to be attributed to the permanent establishment of an enterprise, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
(7)
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
(8)
Nothing in this Article shall affect the operation of any law of a Contracting State relating to taxation of profits from insurance with non-residents provided that if the relevant law in force in either State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
ARTICLE 8 Shipping and Air Transport
(1)
Profits from the operation of ships or aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1), such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
(3)
The provisions of paragraphs (1) and (2) shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organization or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
(5)
With respect to profits derived by the Danish, Norwegian and Swedish air transport consortium, known as the Scandinavian Airlines System (SAS), the provisions of paragraphs (1) and (2) shall only apply to such part of the profits as corresponds to the shareholding in the consortium held by Det Danske Luftfartsselskab (DDL), the Danish partner of Scandinavian Airlines System (SAS).
ARTICLE 9 Associated Enterprises
(1)
Where-
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
If the information available to the competent authority of a Contracting State is inadequate to determine the profits to be attributed to an enterprise, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person, provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
(3)
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph (1) or (2), in the profits of an enterprise of the other Contracting State and taxed accordingly, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the first-mentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends.
(3)
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the taxation law of the Contracting State of which the company making the distribution is a resident for the purposes of its tax.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. Provided that this paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Denmark for the purposes of Danish tax.
(6)
Subject to the provisions of this Agreement, a Contracting State may impose on the income of a company which is a resident of the other Contracting State, tax in addition to the tax which would be chargeable on the taxable income of a company which is a resident of the first-mentioned State, provided that any additional tax so imposed by the first-mentioned State shall not exceed 15 per cent of the amount by which the taxable income of the year of income exceeds the tax which would have been payable on that taxable income if the company had been a resident of the first-mentioned State.
(7)
Where an individual who is a resident of Australia receives from a company which is a resident of Denmark a dividend to which he is beneficially entitled and which, if received by a resident of Denmark, would entitle the resident to the Danish tax credit (skattegodtgørelse)-
(a) the individual shall be entitled to the credit subject to the deduction of tax that would apply if that credit were a dividend;
(b) the amount of the credit shall be treated for purposes of Australian tax as assessable income from sources in Denmark.
ARTICLE 11 Interest
(1)
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to income from money lent by the taxation law of the Contracting State in which the income arises.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the indebtedness in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political sub-division or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in that State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 12 Royalties
(1)
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
(3)
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 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 paragraph (a), any such equipment as is mentioned in paragraph (b) or any such knowledge or information as is mentioned in paragraph (c);
(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 of a property or right referred to in this paragraph.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid or credited is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether he is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties or between both of them and some other person the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of Property
(1)
Income from alienation of real property may be taxed in the Contracting State in which that property is situated.
(2)
For the purposes of this Article-
(a) the term "real property" shall include-
(i) a lease of land or any other direct interest in or over land;
(ii) rights to exploit, or to explore for, natural resources; and
(iii) shares or comparable interests in a company, the assets of which consist wholly or principally of direct interests in or over land in one of the Contracting States or of rights to exploit, or to explore for, natural resources in one of the Contracting States;
(b) real property shall be deemed to be situated-
(i) where it consists of direct interests in or over land - in the Contracting State in which the land is situated;
(ii) where it consists of rights to exploit, or to explore for, natural resources - in the Contracting State in which the natural resources are situated or the exploration may take place; and
(iii) where it consists of shares or comparable interests in a company, the assets of which consist wholly or principally of direct interests in or over land in one of the Contracting States or of rights to exploit, or to explore for, natural resources in one of the Contracting States - in the Contracting State in which the assets or the principal assets of the company are situated.
(3)
Subject to the provisions of paragraph (1), income from the alienation of capital assets of an enterprise of one of the Contracting States or available to a resident of one of the Contracting States for the purpose of performing professional services or other independent activities shall be taxable only in that State, but, where those assets form part of the business property of a permanent establishment or fixed base situated in the other Contracting State, such income may be taxed in that other State.
ARTICLE 14 Independent Personal Services
(1)
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base.
(2)
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if-
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the year of income of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State; and
(d) the remuneration is, or upon the application of this Article will be, subject to tax in the first-mentioned State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic may be taxed in the Contracting State in which the place of effective management of the enterprise is situated. Where a resident of Denmark derives remuneration in respect of an employment exercised aboard an aircraft operated in international traffic by the Scandinavian Airlines System (SAS) consortium, such remuneration shall be taxable only in Denmark.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a resident of one of the Contracting States in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
(2)
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
ARTICLE 18 Pensions and Annuities
(1)
Subject to the provisions of paragraph (3), any pension or annuity paid to a resident of one of the Contracting States shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
(3)
Pensions paid by one of the Contracting States or a political subdivision or local authority of that State to any individual in respect of services rendered to that State, political subdivision or local authority, as the case may be, and pensions paid under the social security scheme of one of the Contracting States may be taxed in that State. The provisions of this paragraph shall apply only to individuals who are citizens of the Contracting State from which the payments are made.
ARTICLE 19 Government Service
(1)
Remuneration (other than a pension or annuity) paid by one of the Contracting States or a political subdivision or local authority of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
(2)
The provisions of paragraph (1) shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by one of the Contracting States or a political subdivision or local authority of that State. In such a case, the provisions of Article 15 or Article 16, as the case may be, shall apply.
ARTICLE 20 Students
Where a student, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of his education, receives payments from sources outside that other State for the purpose of his maintenance or education, those payments shall be exempt from tax in that other State.ARTICLE 21 Income Not Expressly Mentioned
(1)
Items of income of a resident of one of the Contracting States which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable only in that Contracting State.
(2)
However, if such income is derived by a resident of one of the Contracting States from sources in the other Contracting State, such income may also be taxed in the Contracting State in which it arises.
(3)
The provisions of paragraph (1) shall not apply to income derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
ARTICLE 22 Source of Income
(1)
Income derived by a resident of Denmark which, under any one or more of Articles 6 to 8 and Articles 10 to 18 and Article 21 may be taxed in Australia, shall for the purposes of the income tax law of Australia be deemed to be income from sources in Australia.
(2)
Income derived by a resident of Australia which, under any one or more of Articles 6 to 8 and Articles 10 to 18 and Article 21 may be taxed in Denmark, shall for the purposes of paragraph (1) of Article 23 and of the income tax law of Australia be deemed to be income from sources in Denmark.
ARTICLE 23 Methods of Elimination of Double Taxation
(1)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Danish tax paid under the law of Denmark and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Denmark (not including in the case of a dividend, tax paid in respect of the profits out of which the dividend is paid) shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
Double taxation shall be avoided as follows in Denmark:
(a) Subject to the provisions of subparagraph (c), where a resident of Denmark derives income which, in accordance with the provisions of this Agreement may be taxed in Australia, Denmark shall allow as a deduction from the tax on the income of that resident, an amount equal to the income tax paid in Australia;
(b) Such deduction shall not, however, exceed that part of the income tax, as computed before the deduction is given, which is attributable to the income which may be taxed in Australia;
(c) Where a resident of Denmark derives income which, in accordance with the provisions of this Agreement, shall be taxable only in Australia, Denmark may include this income in the tax base, but shall allow as a deduction from the income tax that part of the income tax which is attributable to the income derived from Australia.
(3)
In the event that one of the Contracting States should cease to allow a company which is a resident of that State relief from its tax in respect of dividends paid to it by a company which is a resident of the other Contracting State, being relief available under the taxation law of the first-mentioned State as in force at the date of signature of this Agreement, that State will immediately advise the other State of the change and enter into negotiations with it to establish new provisions concerning the relief to be allowed in the first-mentioned State under this Article in respect of that State's tax on the dividends.
ARTICLE 24 Mutual Agreement Procedure
(1)
Where a resident of one of the Contracting States considers that the actions of the competent authority of one or both of the Contracting States result or will result for him in taxation not in accordance with this Agreement, he may, notwithstanding the remedies provided by the national laws of those States, present his case to the competent authority of the Contracting State of which he is a resident. The case must be presented within three years from the first notification of the action giving rise to taxation not in accordance with this Agreement.
(2)
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the national laws of the Contracting States.
(3)
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the application of this Agreement.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 25 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the domestic laws of the Contracting States concerning the taxes to which this Agreement applies insofar as the taxation thereunder is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies. It shall be used only for such purposes and may be disclosed in public court proceedings or in judicial decisions.
(2)
In no case shall the provisions of paragraph (1) be construed so as to impose on a Contracting State the obligation-
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 26 Diplomatic and Consular Officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special international agreements.ARTICLE 27 Entry into Force
This Agreement shall enter into force on the date on which the Government of Australia and the Government of Denmark exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in Denmark, as the case may be, and thereupon this Agreement shall have effect-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year immediately following that in which the Agreement enters into force;
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year immediately following that in which the Agreement enters into force;
(b) in Denmark-
in relation to income derived on or after 1 January in the calendar year immediately following that in which the Agreement enters into force.ARTICLE 28 Termination
This Agreement shall continue in effect indefinitely, but the Government of Australia or the Government of Denmark may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Government through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year immediately following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year immediately following that in which the notice of termination is given;
(b) in Denmark-
in relation to income derived on or after 1 January in the calendar year immediately following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorized thereto, have signed this Agreement.
DONE in duplicate at Canberra this first day of April One thousand nine hundred and eighty-one in the English language.
JOHN HOWARD
FOR THE GOVERNMENT OF AUSTRALIAMOGENS WARBERG
FOR THE GOVERNMENT OF THE KINGDOM OF DENMARK
Sch 18 inserted by No 143 of 1981.
(Repealed by No 139 of 1992)
History
Sch 19 inserted by No 57 of 1983.
The Indian Airline Profits Agreement entered into force on 16 November 1983.
(Repealed by No 45 of 2011)
History
Sch 20 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Irish Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 20 formerly read:
SCHEDULE 20 - Irish Agreement
Section 3
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF IRELAND FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AND CAPITAL GAINS
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Agreement shall apply are-
(a) in Australia:
the Australian income tax, including the additional tax upon the undistributed amount of the distributable income of a private company;
(b) in Ireland:
(i) the income tax;
(ii) the corporation tax; and
(iii) the capital gains tax.
(2)
This Agreement shall also apply to any identical or substantially similar taxes which are imposed by either Contracting State after the date of signature of this Agreement in addition to, or in place of, the existing taxes. As soon as possible after the end of each calendar year, the competent authority of each Contracting State shall notify the competent authority of the other Contracting State of any substantial changes which have been made in the laws of the State relating to the taxes to which this Agreement applies.
ARTICLE 3 General Definitions
(1)
In this Agreement, unless the context otherwise requires-
(a) the term "Australia" means the Commonwealth of Australia and, when used in a geographical sense, includes-
(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 Coral Sea Islands Territory; and
(vi) any area adjacent to the territorial limits of Australia or of the said Territories in respect of which there is for the time being in force, consistently with international law, a law of Australia or of a State or part of Australia or of a Territory aforesaid dealing with the exploitation of any of the natural resources of the sea-bed and subsoil of the continental shelf;
(b) the term "Ireland" includes any area outside the territorial waters of Ireland which in accordance with international law has been or may hereafter be designated, under the laws of Ireland concerning the Continental Shelf, as an area within which the rights of Ireland with respect to the sea-bed and subsoil and their natural resources may be exercised;
(c) the terms "Contracting State", "one of the Contracting States" and "the other Contracting State" mean Australia or Ireland, as the context requires;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is assimilated to a body corporate for tax purposes;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Ireland, as the context requires;
(g) the term "tax" means Australian tax or Irish tax, as the context requires;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "Irish tax" means tax imposed by Ireland, being tax to which this Agreement applies by virtue of Article 2;
(j) the term "competent authority" means:
(i) in the case of Australia, the Commissioner of Taxation or his authorised representative;
(ii) in the case of Ireland, the Revenue Commissioners or their authorised representative.
(2)
In this Agreement, the terms "Australian tax" and "Irish tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes to which this Agreement applies by virtue of Article 2.
(3)
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State relating to the taxes to which this Agreement applies.
ARTICLE 4 Residence
(1)
For the purposes of this Agreement, a person is a resident of one of the Contracting States-
(a) in the case of Australia, subject to the provisions of paragraph (2) of this Article, if the person is a resident of Australia for the purposes of Australian tax; and
(b) in the case of Ireland, if the person is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature but not if he is liable to tax in Ireland in respect only of income from sources therein.
(2)
In relation to income from sources in Ireland a person who is subject to Australian tax on income which is from sources in Australia shall not be treated as a resident of Australia unless the income from sources in Ireland is subject to Australian tax or, if that income is exempt from Australian tax, it is so exempt solely because it is subject to Irish tax.
(3)
Where by reason of the preceding provisions of this Article an individual is a resident of both Contracting States, then his status shall be determined in accordance with the following rules:
(a) he shall be deemed to be a resident solely of the Contracting State in which he has a permanent home available to him;
(b) if he has a permanent home available to him in both Contracting States, or if he does not have a permanent home available to him in either of them, he shall be deemed to be a resident solely of the Contracting State in which he has an habitual abode;
(c) if he has an habitual abode in both Contracting States, or if he does not have an habitual abode in either of them, he shall be deemed to be a resident solely of the Contracting State with which his personal and economic relations are the closer.
(4)
Where by reason of the provisions of paragraph (1) of this Article, a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially-
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property;
(h) a building site or construction, installation or assembly project which exists for more than twelve months;
(i) an installation or structure used for the exploration of natural resources.
(3)
An enterprise shall not be deemed to have a permanent establishment merely by reason of-
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(4)
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if-
(a) it carries on supervisory activities in that State for more than twelve months in connection with a building site, or a construction, installation or assembly project which is being undertaken in that State;
(b) substantial equipment is being used in that State by, for or under contract with the enterprise; or
(c) it carries on activities in that State in connection with the exploration or exploitation of the sea-bed, subsoil or their natural resources in that State.
(5)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (6) of this Article applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if-
(a) he has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless his activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting, he manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise, provided that this provision shall apply only in relation to the goods or merchandise so manufactured or processed.
(6)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of his business as such a broker or agent.
(7)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
(8)
The principles set forth in paragraphs (1) to (7) of this Article shall be applied in determining for the purposes of paragraph (5) of Article 12 and paragraph (5) of Article 13 whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
ARTICLE 6 Limitation of Relief
Where under any provision of this Agreement income is relieved from tax in one of the Contracting States and, under the law in force in the other Contracting State-
(a) the income or a part thereof is exempt from tax; or
(b) a person, in respect of the said income, is subject to tax by reference to the amount thereof which is remitted to or received in that other State, and not by reference to the full amount thereof, then the relief to be allowed under this Agreement in the first-mentioned State shall apply-
(c) where (a) above applies, only to so much of the income as is not exempt from tax in the other State; or
(d) where (b) above applies, only to so much of the income as is remitted to or received in the other State.ARTICLE 7 Income from Real Property
(1)
Income from real property may be taxed in the Contracting State in which the real property is situated.
(2)
In 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 Ireland, means immovable property according to the laws of Ireland, and shall also include-
(i) property accessory to immovable property;
(ii) rights to which the provisions of the general law respecting landed property apply;
(iii) usufruct of immovable property; and
(iv) 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.Ships, boats and aircraft shall not be regarded as real property.
(3)
The provisions of paragraph (1) of this Article shall apply to income derived from the direct use, letting or use in any other form of real property.
(4)
A lease of land, any other interest in or over land and any right referred to in any of the subparagraphs of paragraph (2) of this Article shall be regarded as situated where the land, mineral deposits, oil or gas wells, quarries or natural resources as the case may be, are situated.
(5)
The provisions of paragraphs (1), (3) and (4) of this Article shall also apply to income from real property of an enterprise and to income from real property used for the performance of professional services.
ARTICLE 8 Business Profits
(1)
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State, but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph (3) of this Article, where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
If the information available to the competent authority of a Contracting State is inadequate to determine the profits to be attributed to the permanent establishment of an enterprise, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
(6)
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
(7)
Nothing in this Article shall apply to either Contracting State to prevent the operation in the Contracting State of any provision of its law relating specifically to the taxation of any person who carries on a business of any form of insurance.
ARTICLE 9 Shipping and Air Transport
(1)
Profits from the operation of ships or aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1) of this Article, such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
(3)
The provisions of paragraphs (1) and (2) of this Article shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organization or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
ARTICLE 10 Associated Enterprises
(1)
Where-
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
If the information available to the competent authority of a Contracting State is inadequate to determine the profits to be attributed to an enterprise, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person, provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
(3)
Notwithstanding the provisions of this Article, an enterprise of one of the Contracting States may be taxed by that Contracting State as if this Article had not entered into force and had not had effect but, so far as it is practicable to do so, in accordance with the principles of this Article.
(4)
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraphs (1), (2) or (3) of this Article, in the profits of an enterprise of the other Contracting State and taxed accordingly, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the first-mentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
(5)
The provisions of paragraph (4) of this Article relating to an appropriate adjustment are not applicable after the expiration of six years from the end of the year of assessment or financial year, as the case may be, in respect of which a Contracting State has charged to tax the profits to which the adjustment would relate.
ARTICLE 11 Dividends
(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 Ireland is beneficially entitled, may be taxed in Ireland. Such dividends may also be taxed in Australia, according to the law of Australia, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends.
(2)
(a) Dividends paid by a company which is a resident of Ireland for the purposes of Irish tax, being dividends to which a resident of Australia is beneficially entitled, may be taxed in Australia.
(b) Where a resident of Australia is entitled to a tax credit in respect of a dividend under paragraph (3) of this Article, tax may also be charged in Ireland and according to the laws of Ireland on the aggregate of the amount or value of that dividend and the amount of that tax credit at a rate not exceeding 15 per cent.
(c) Except as aforesaid, dividends paid by a company which is a resident of Ireland for the purposes of Irish tax, being dividends to which a resident of Australia is beneficially entitled, shall be exempt from any tax in Ireland which is chargeable on dividends.
(3)
A resident of Australia who receives dividends from a company which is a resident of Ireland shall, subject to the provisions of paragraph (4) of this Article and provided he is the beneficial owner of the dividends, be entitled to the tax credit in respect thereof to which an individual resident in Ireland would have been entitled had he received those dividends, and to the payment of any excess of that tax credit over his liability to Irish tax. Any such credit shall be treated for the purposes of Australian tax as assessable income from sources in Ireland.
(4)
The provisions of paragraph (3) of this Article shall not apply where the beneficial owner of the dividends (being a company) is, or is associated with, a company which either alone or together with one or more associated companies controls directly or indirectly 10 per cent or more of the voting power in the company paying the dividends. For the purposes of this paragraph two companies shall be deemed to be associated if one controls directly or indirectly more than 50 per cent of the voting power in the other company, or a third company controls more than 50 per cent of the voting power in both of them.
(5)
The term "dividends" in this Article means income from shares and includes any income or distribution assimilated to income from shares under the taxation law of the Contracting State of which the company paying the dividends or income or making the distribution is a resident.
(6)
Where the company paying a dividend is a resident of one of the Contracting States and the beneficial owner of the dividend, being a resident of the other Contracting State, owns 10 per cent or more of the class of shares in respect of which the dividend ispaid, paragraphs (2) and (3) of this Article shall not apply to the dividend to the extent that it can have been paid only out of profits which the company paying the dividend earned or other income which it received in a period ending 12 months or more before the relevant date. For the purposes of this paragraph the term "relevant date" means the date on which the beneficial owner of the dividend became the owner of 10 per cent or more of the class of shares in question: provided that this paragraph shall not apply if the shares were acquired for bona fide commercial reasons and not primarily for the purpose of securing the benefit of this Article.
(7)
The provisions of paragraphs (1), (2) and, (3) of this Article shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 8 or Article 15, as the case may be, shall apply.
(8)
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State: provided that this paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Ireland for the purposes of Irish tax.
ARTICLE 12 Interest
(1)
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to income from money lent by the taxation law of the Contracting State in which the income arises but does not include any income which is treated as a dividend under Article 11.
(4)
The provisions of paragraphs (1) and (2) of this Article shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the indebtedness in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 8 or Article 15, as the case may be, shall apply.
(5)
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
(7)
The provisions of this Article shall not apply if the indebtedness in respect of which the interest is paid was created or assigned mainly for the purpose of taking advantage of this Article and not for bona fide commercial reasons.
ARTICLE 13 Royalties
(1)
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
(3)
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 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);
(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 of a property or right referred to in this paragraph.
(4)
The provisions of paragraphs (1) and (2) of this Article shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid or credited is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 8 or Article 15, as the case may be, shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether he is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
(7)
The provisions of this Article shall not apply if the right or property in respect of which the royalties were paid or credited was created or assigned mainly for the purpose of taking advantage of this Article and not for bona fide commercial reasons.
ARTICLE 14 Alienation of Property
(1)
Income or gains from the alienation of real property may be taxed in the Contracting State in which that property is situated.
(2)
For the purposes of this Article-
(a) the term "gains" means, in the case of Ireland, chargeable gains as defined in the taxation law of Ireland;
(b) the term "real property" shall include-
(i) a lease of land or any other interest in or over land;
(ii) rights to exploit, or to explore for, natural resources;
(iii) shares or comparable interests in a company the assets of which consist wholly or principally of interests in or over land in one of the Contracting States or of rights to exploit, or to explore for, natural resources in one of the Contracting States;
(iv) any partnership interest, or any interest in settled property deriving its value or the greater part of its value directly or indirectly from interests in or over land in one of the Contracting States or rights to exploit, or to explore for, natural resources in one of the Contracting States; and
(v) any option, consent or embargo affecting the disposition of interests in or over land in one of the Contracting States or rights to exploit, or to explore for, natural resources in one of the Contracting States; and
(c) real property shall be deemed to be situated-
(i) where it consists of interests in or over land - in the Contracting State in which the land is situated;
(ii) where it consists of rights to exploit, or to explore for, natural resources - in the Contracting State in which the natural resources are situated or the exploration may take place; and
(iii) where it consists of shares or comparable interests in a company referred to in clause (iii) of subparagraph (b) of this paragraph, a partnership interest or an interest in settled property referred to in clause (iv) of the said subparagraph, or an option, consent or embargo referred to in clause (v) of the said subparagraph - in the Contracting State in which the land or natural resources are wholly or principally situated or the exploration may take place.
(3)
Subject to the provisions of paragraph (1) of this Article, income or gains from the alienation of capital assets of an enterprise of one of the Contracting States or of capital assets available to a resident of one of the Contracting States for the purpose of performing professional services orother independent activities shall be taxable only in that State, but, where those assets form the whole or part of the business property of a permanent establishment or fixed base situated in the other Contracting State, such income or gains may be taxed in that other State.
(4)
Income or gains derived by an enterprise of one of the Contracting States from the alienation of ships or aircraft operated in international traffic while owned by that enterprise shall be taxable only in that State.
ARTICLE 15 Independent Personal Services
(1)
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base.
(2)
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 16 Dependent Personal Services
(1)
Subject to the provisions of Articles 17, 19, 20 and 21, salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1) of this Article, remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if-
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the year of income or year of assessment, as the case may be, of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that Contracting State.
ARTICLE 17 Directors' fees
Directors' fees and similar payments derived by a resident of one of the Contracting States in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 18 Entertainers
(1)
Notwithstanding the provisions of Articles 15 and 16, income derived by entertainers (such as theatrical, motion picture, radio or television artistes, musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
(2)
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 8, 15 and 16, be taxed in the Contracting State in which the activities of the entertainer are exercised.
ARTICLE 19 Pensions and Annuities
(1)
Pensions (including government pensions) and annuities paid to a resident of one of the Contracting States shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
(3)
Any alimony or other maintenance payment arising in one of the Contracting States and paid to a resident of the other Contracting State shall be taxable only in the first-mentioned State.
ARTICLE 20 Government Service
(1)
Remuneration (other than a pension or annuity) paid by one of the Contracting States or a political subdivision or local authority of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen of that State; or
(b) did not become a resident of that State solely for the purpose of rendering the services.
(2)
The provisions of paragraph (1) of this Article shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by one of the Contracting States or a political subdivision or local authority of that State. In such a case, the provisions of Article 16 or Article 17, as the case may be, shall apply.
ARTICLE 21 Professors and Teachers
(1)
Remuneration which a professor or teacher who is a resident of one of the Contracting States and who visits the other Contracting State for a period not exceeding two years for the purpose of teaching or carrying out advanced study or research at a university, college, school or other educational institution, receives for those activities shall be taxable only in the first-mentioned State.
(2)
This Article shall not apply to remuneration which a professor or teacher receives for conducting research if the research is undertaken primarily for the private benefit of a specific person or persons.
ARTICLE 22 Students
Where a student, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of his education, receives payments from sources outside that other State for the purpose of his maintenance or education, those payments shall be exempt from tax in that other State.ARTICLE 23 Income Not Expressly Mentioned
(1)
Items of income of a resident of one of the Contracting States which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable only in that Contracting State.
(2)
However, if such income is derived by a resident of one of the Contracting States from sources in the other Contracting State, such income may also be taxed in the Contracting State in which it arises.
(3)
The provisions of paragraph (1) of this Article shall not apply to income derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In such a case, the provisions of Article 8 or Article 15, as the case may be, shall apply.
ARTICLE 24 Source of Income
(1)
Income or gains derived by a resident of one of the Contracting States which, under any one or more of Articles 7 to 9, 11 to 19 and Article 23 may be taxed in the other Contracting State, shall for the purposes of the taxation law of the other Contracting State be deemed to be income or gains from sources in the other Contracting State.
(2)
Income or gains derived by a resident of one of the Contracting States which, under any one or more of Articles 7 to 9, 11 to 19 and Article 23 may be taxed in the other Contracting State, shall for the purposes of Article 25 and of the taxation law of the first-mentioned Contracting State be deemed to be income or gains from sources in the other Contracting State.
ARTICLE 25 Methods of Elimination of Double Taxation
(1)
(a) Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Irish tax paid under the law of Ireland and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Ireland (not including, in the case of a dividend, tax paid in respect of the profits out of which the dividend is paid) shall be allowed as a credit against Australian tax payable in respect of that income;
(b) in the event that Australia should cease to allow a company which is a resident of Australia a rebate in its assessment at the average rate of tax payable by the company in respect of dividends derived from sources in Ireland and included in the taxable income of the company, the Governments of the Contracting States will enter into negotiations in order to establish new provisions concerning the credit to be allowed by Australia against its tax on the dividends.
(2)
Subject to the provisions of the law of Ireland regarding the allowance as a credit against Irish tax of tax payable in a territory outside Ireland (which shall not affect the general principle hereof):
(a) Australian tax payable under the law of Australia and in accordance with this Agreement, whether directly or by deduction, on profits, income or chargeable gains from sources within Australia (excluding in the case of a dividend, tax payable in respect of the profits out of which the dividend is paid) shall be allowed as a credit against any Irish tax computed by reference to the same profits, income or chargeable gains by reference to which Australian tax is computed;
(b) in the case of a dividend paid by a company which is a resident of Australia to a company which is a resident of Ireland and which controls directly or indirectly 10 per cent or more of the voting power in the company paying the dividend, the credit shall take into account (in addition to any Australian tax creditable under the provisions of subparagraph (a) of this paragraph) the Australian tax payable by the company in respect of the profits out of which such dividend is paid.
ARTICLE 26 Mutual Agreement Procedure
(1)
Where a resident of one of the Contracting States considers that the actions of the competent authority of one or both of the Contracting States result or will result for him in taxation not in accordance with this Agreement, he may, notwithstanding the remedies provided by the national laws of those States, present his case to the competent authority of the Contracting State of which he is a resident. The case must be presented within three years from the first notification of the action giving rise to taxation not in accordance with this Agreement.
(2)
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement. Notwithstanding any time limits in the national laws of the Contracting States, the solution so reached may be implemented within a period of seven years from the date of presentation of the case by the resident to the relevant competent authority in accordance with paragraph (1) of this Article.
(3)
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficultiesor doubts arising as to the application of this Agreement.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 27 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the domestic laws of the Contracting States concerning the taxes to which this Agreement applies insofar as the taxation thereunder is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
(2)
In no case shall the provisions of paragraph (1) of this Article be construed so as to impose on a Contracting State the obligation-
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 28 Diplomatic and Consular Officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special international agreements.ARTICLE 29 Entry into Force
This Agreement shall enter into force on the date on which the Government of Australia and the Government of Ireland exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in Ireland, as the case may be, and thereupon this Agreement shall have effect-
(a) in Australia-
(i) with respect to withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July in the calendar year immediately following that in which the Agreement enters into force;
(ii) with respect to other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year immediately following that in which the Agreement enters into force;
(b) in Ireland-
(i) with respect to income tax and capital gains tax, for any year of assessment beginning on or after 6 April in the calendar year immediately following that in which the Agreement enters into force;
(ii) with respect to corporation tax, for any financial year beginning on or after 1 January in the calendar year immediately following that in which the Agreement enters into force.ARTICLE 30 Termination
This Agreement shall continue in effect indefinitely, but the Government of Australia or the Government of Ireland may, on or before 30 June in any calendar year beginning after the expiration of five years from the date of its entry into force, give to the other Government through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective-
(a) in Australia-
(i) with respect to withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July in the calendar year immediately following that in which the notice of termination is given;
(ii) with respect to other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year immediately following that in which the notice of termination is given;
(b) in Ireland-
(i) with respect to income tax and capital gains tax, for any year of assessment beginning on or after 6 April in the calendar year immediately following that in which the notice of termination is given;
(ii) with respect to corporation tax, for any financial year beginning on or after 1 January in the calendar year immediately following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorized thereto, have signed this Agreement and affixed thereto their seals.
DONE in duplicate at Canberra this thirty-first day of May One thousand nine hundred and eighty-three in the English language.
J.S. DAWKINS
FOR THE GOVERNMENT OF AUSTRALIAJOSEPH SMALL
FOR THE GOVERNMENT OF IRELAND
Sch 20 inserted by No 57 of 1983. The Irish Agreement entered into force on 21 December 1983.
(Repealed by No 45 of 2011)
History
Sch 21 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Italian Convention from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 21 formerly read:
SCHEDULE 21 - Italian Convention
Section 3
CONVENTION BETWEEN AUSTRALIA AND THE REPUBLIC OF ITALY FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
CHAPTER I SCOPE OF THE CONVENTION
ARTICLE 1 Personal Scope
This Convention shall apply to persons who are residents of one or both of the Contracting States. ARTICLE 2 Taxes Covered
(1)
This Convention shall apply only to taxes on income imposed on behalf of each Contracting State irrespective of the manner in which they are levied.
(2)
The existing taxes to which this Convention shall apply are-
(a) in the case of Australia:
the Australian income tax, including the additional tax upon the undistributed amount of the distributable income of a private company;
(b) in the case of Italy:
(i) the individual income tax (l'imposta sul reddito delle persone fisiche);even if they are collected by withholding taxes at the source.
(ii) the corporate income tax (l'imposta sul reddito delle persone giuridiche);
(3)
The Convention shall apply to any identical or substantially similar taxes which are imposed after the date of signature of this Convention in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify to each other any significant changes which have been made in their laws relating to the taxes to which this Convention applies.
CHAPTER II DEFINITIONS
ARTICLE 3 General Definitions
(1)
In this Convention, unless the context otherwise requires-
(a) the term "Australia" means the Commonwealth of Australia and, when used in a geographical sense, includes-
(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 Coral Sea Islands Territory; and
(vi) any area adjacent to the territorial limits of Australia or of the said Territories in respect of which there is for the time being in force a law of Australia or of a State or part of Australia or of a Territory aforesaid dealing with the exploitation of any of the natural resources of the sea-bed and subsoil of the continental shelf;
(b) the term "Italy" means the Republic of Italy and includes any area beyond the territorial waters of Italy which, in accordance with the laws of Italy concerning the exploration for and exploitation of natural resources, may be designated as an area within which the rights of Italy with respect to the sea-bed and subsoil and natural resources may be exercised;
(c) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" mean Australia or Italy, as the context requires;
(d) the term "person" comprises an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Italy, as the context requires;
(g) the term "tax" means Australian tax or Italian tax, as the context requires;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Convention applies by virtue of Article 2;
(i) the term "Italian tax" means tax imposed by Italy, being tax to which this Convention applies by virtue of Article 2;
(j) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or his authorized representative, and in the case of Italy, the Ministry of Finance.
(2)
In this Convention, the terms "Australian tax" and "Italian tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes to which this Convention applies by virtue of Article 2.
(3)
In the application of this Convention by a Contracting State, any term not otherwise defined shall, unless the context otherwise requires, have the meaning which it has under the laws of that Contracting State relating to the taxes to which this Convention applies.
ARTICLE 4 Residence
(1)
For the purposes of this Convention, a person is a resident of one of the Contracting States-
(a) in the case of Australia, subject to paragraph (2), if the person is a resident of Australia for the purposes of Australian tax; and
(b) in the case of Italy, if the person is a resident of Italy for the purposes of Italian tax.
(2)
In relation to income from sources in Italy, a person who is subject to Australian tax on income which is from sources in Australia shall not be treated as a resident of Australia unless the income from sources in Italy is subject to Australian tax or, if that income is exempt from Australian tax, it is so exempt solely because it is subject to Italian tax.
(3)
Where by reason of the provisions of paragraph (1) an individual is a resident of both Contracting States, then his status shall be determined in accordance with the following rules:
(a) he shall be deemed to be a resident solely of the Contracting State in which he has a permanent home available to him;
(b) if he has a permanent home available to him in both Contracting States, or if he does not have a permanent home available to him in either of them, he shall be deemed to be a resident solely of the Contracting State in which he has an habitual abode;
(c) if he has an habitual abode in both Contracting States, or if he does not have an habitual abode in either of them, he shall be deemed to be a resident solely of the Contracting State with which his personal and economic relations are the closer.
(4)
Where by reason of the provisions of paragraph (1) a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Convention, the term "permanent establishment" means a fixed place of business in which the business of the enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially-
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, quarry or other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property;
(h) a building site or construction, installation or assembly project which exists for more than twelve months.
(3)
The term "permanent establishment" shall not be deemed to include-
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(4)
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if-
(a) it carries on supervisory activities in that State for more than twelve months in connection with a building site, or a construction, installation or assembly project which is being undertaken in that State; or
(b) substantial equipment is being used in that State for more than twelve months by, for or under contract with the enterprise inexploration for, or the exploitation of, natural resources, or in activities connected with such exploration or exploitation.
(5)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (6) applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if-
(a) he has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless his activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting, he manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise provided that this provision shall apply only in relation to the goods or merchandise so manufactured or processed.
(6)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of his business as such a broker or agent.
(7)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.
(8)
The principles set forth in paragraphs (1) to (7) inclusive shall be applied in determining for the purposes of this Convention whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
CHAPTER III TAXATION OF INCOME
ARTICLE 6 Income from Real Property
(1)
Income from real property may be taxed in the Contracting State in which such property is situated.
(2)
The term "real property" (beni immobili) shall have the meaning which it has under the laws in force in the Contracting State in which the property in question is situated. The term shall in any case include rights to royalties and other payments in respect of the operation of mines or quarries or of the exploitation of any natural resource and those rights shall be regarded as situated where the land is situated. Ships, boats or aircraft shall not be regarded as real property.
(3)
The provisions of paragraph (1) shall apply to income derived from the direct use, letting, or use in any other form of real property.
(4)
Income from a lease of land and income from any other direct interest in or over land, whether or not improved, shall be regarded as income from real property situated where the land is situated.
(5)
The provisions of paragraphs (1), (3) and (4) shall also apply to the income from real property of an enterprise and to income from real property used for the performance of independent personal services.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State, but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph (3), where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
Nothing in this Article shall affect the operation of any law of a Contracting State relating to taxation of profits from insurance with non-residents provided that if the relevant law in force in either State at the date of signature of this Convention is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(6)
For the purposes of this Article, the profits of an enterprise do not include items of income which are dealt with separately in other Articles of this Convention and the provisions of those Articles shall not be affected by the provisions of this Article.
ARTICLE 8 Shipping and Aircraft
(1)
Where profits are derived by a resident of one of the Contracting States from the operation of ships and the placeof the effective management of the shipping enterprise is situated in that State, those profits shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1), such profits may be taxed in the other Contracting State where they are profits from operations of ships confined solely to places in that other State.
(3)
The provisions of paragraphs (1) and (2) shall apply in relation to the share of the profits from the operation of ships derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organization or in an international operating agency.
(4)
For the purpose of this Article, profits derived from the carriage by ships of passengers, livestock, mail, goods or merchandise shipped in one of the Contracting States for discharge at another place in that State shall be treated as profits from operations of ships confined solely to places in that State.
(5)
If the place of effective management of a shipping enterprise is aboard a ship, then it shall be deemed to be situated in the Contracting State in which the home harbour of the ship is situated, or, if there is no such home harbour, in the Contracting State of which the operator of the ship is a resident.
(6)
Nothing in this Convention shall affect the operation of the Agreement between the Governments of the Contracting States for the avoidance of double taxation of income derived from international air transport signed at Canberra on 13 April 1972.
ARTICLE 9 Associated Enterprises
Where-
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends.
(3)
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the taxation law of the Contracting State of which the company making the distribution is a resident.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such a case the dividends are taxable in that other Contracting State according to its own law.
(5)
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. Provided that this paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Italy for the purposes of Italian tax.
ARTICLE 11 Interest
(1)
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
Notwithstanding the provisions of paragraph (2), interest derived by the Government of one of the Contracting States or by a political or administrative subdivision or a local authority thereof or by any other body exercising public functions in, or in a part of, a Contracting State, or by a bank performing central banking functions in a Contracting State, shall be exempt from tax in the other Contracting State.
(4)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to income from money lent by the taxation law of the Contracting State in which the income arises.
(5)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the indebtedness in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such a case, the interest is taxable in that other Contracting State according to its own law.
(6)
Interest shall be deemed to arise in one of the Contracting States when the payer is that State itself or a political or administrative subdivision of that State or a local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether he is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(7)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Convention.
ARTICLE 12 Royalties
(1)
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
(3)
The term "royalties" in this Article means payments, whether periodical or not, and however described or computed, to the extent to which they are paid as consideration for the use of, or the right to use, any copyright, patent, design or model, plan, secret formula or process, trade-mark, or other like property or right, or industrial, commercial or scientific equipment, or for the supply of scientific, technical, industrial or commercial knowledge or information, or for the supply of any assistance of an ancillary and subsidiary nature furnished as a means of enabling the application or enjoyment of such knowledge or information or any other property or right to which this Article applies, and includes any payments to the extent to which they are paid as consideration for the use of, or the right to use, motion picture films, films or video tapes for use in connection with television or tapes for use in connection with radio broadcasting.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such a case, the royalties are taxable in that other Contracting State according to its own law.
(5)
Royalties shall be deemed to arise in one of the Contracting States when the payer is that Contracting State itself or a political or administrative subdivision of that State or a local authority of that State or a person who is a resident of that State for purposes of its tax. Where, however, the person paying the royalties, whether he is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties or between both of them and some other person the amount of the royalties paid, having regard to what they are paid for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Convention.
ARTICLE 13 Alienation of Property
(1)
Income from the alienation of real property may be taxed in the Contracting State in which that property is situated.
(2)
For the purposes of this Article-
(a) the term "real property" shall include-
(i) a lease of land or any other direct interest in or over land;
(ii) rights to exploit, or to explore for, natural resources; and
(iii) shares or comparable interest in a company, the assets of which consist wholly or principally of direct interests in or over land in one of the Contracting States or of rights to exploit, or to explore for, natural resources in one of the Contracting States.
(b) real property shall be deemed to be situated-
(i) where it consists of direct interests in or over land - in the Contracting State in which the land is situated;
(ii) where it consists of rights to exploit, or to explore for, natural resources - in the Contracting State in which the natural resources are situated or the exploration may take place; and
(iii) where it consists of shares or comparable interests in a company, the assets of which consist wholly or principally of direct interests in or over land in one of the Contracting States or of rights to exploit, or to explore for, natural resources in one of the Contracting States - in the Contracting State in which the assets or the principal assets of the company are situated.
(3)
Gains from the alienation of shares or corporate rights in a company which is a resident of Italy for the purposes of Italian tax, derived by an individual who is a resident of Australia, may be taxed in Italy.
ARTICLE 14 Independent Personal Services
(1)
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base.
(2)
The term "professional services" includes especially services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 18, 19 and 20 salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if-
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the year of income or the fiscal year as the case may be, of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State.
(3)
Notwithstanding the preceding provisions of this Article remuneration derived by a resident of one of the Contracting States in respect of an employment exercised aboard a ship or aircraft in international traffic shall be taxable only in that Contracting State.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a resident of one of the Contracting States in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State. ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
(2)
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
ARTICLE 18 Pensions and Annuities
(1)
Pensions (including government pensions) and annuities paid to a resident of one of the Contracting States shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
(3)
Any alimony or other maintenance payment arising in a Contracting State and paid to a resident of the other Contracting State, shall be taxable only in the first-mentioned State.
ARTICLE 19 Government Service
(1)
Remuneration (other than a pension or annuity) paid by one of the Contracting States or by a political or administrative subdivision of that State or by a local authority of that State to any individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the recipient is a resident of that State who:
(a) is a citizen or national of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
(2)
The provisions of paragraph (1) shallnot apply to remuneration in respect of services rendered in connection with any trade or business carried on by one of the Contracting States or by a political or administrative subdivision of one of the States or by a local authority of one of the States. In such a case the provisions of Articles 15 and 16 shall apply.
ARTICLE 20 Professors and Teachers
A professor or teacher who visits one of the Contracting States for a period not exceeding two years for the purpose of teaching or carrying out advanced study or research at a university, college, school or other educational institution in that State and who immediately before that visit was a resident of the other Contracting State shall be exempt from tax in the first-mentioned State on any remuneration for such teaching, advanced study or research in respect of which he is, or upon the application of this Article will be, subject to tax in the other State. ARTICLE 21 Students
Where a student, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in the other State solely for the purpose of his education, receives payments from sources outside the other State for the purpose of his maintenance or education, those payments shall be exempt from tax in the other State. ARTICLE 22 Income of Dual Resident
Where a person, who by reason of the provisions of paragraph (1) of Article 4 is a resident of both Contracting States but by reason of the provisions of paragraph (3) or (4) of that Article is deemed for the purposes of this Convention to be a resident solely of one of the Contracting States, derives income from sources in that Contracting State or from sources outside both Contracting States, that income shall be taxable only in that Contracting State. ARTICLE 23 Source of Income
Income derived by a resident of one of the Contracting States which, under any one or more of Articles 6 to 8 and 10 to 17 may be taxed in the other Contracting State, shall for the purposes of Article 24, and of the income tax law of that other State, be deemed to be income from sources in that other State.CHAPTER IV METHODS OF ELIMINATION OF DOUBLE TAXATION
ARTICLE 24
(1)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Italian tax paid, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Italy shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
If a resident of Italy owns items of income which are taxable in Australia, Italy in determining its income taxes specified in Article 2 of this Convention, may include in the basis upon which such taxes are imposed the said items of income, unless specific provisions of this Convention otherwise provide. In such a case, Italy shall deduct from the taxes so calculated the Australian tax on income, but in an amount not exceeding that proportion of the aforesaid Italian tax which such items of income bear to the entire income. On the contrary no deduction will be granted if the item of income is subjected in Italy to a final withholding tax by request of the recipient of the said income in accordance with the Italian law.
CHAPTER V SPECIAL PROVISIONS
ARTICLE 25 Mutual Agreement Procedure
(1)
Where a resident of one of the Contracting States considers that the actions of one or both of the Contracting States result or will result for him in taxation not in accordance with this Convention, he may, notwithstanding the remedies provided by the national laws of those States, present his case to the competent authority of the Contracting State of which he is a resident. This case must be presented within two years from the first notification of the action.
(2)
The competent authority shall endeavour, if the taxpayer's claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Convention.
(3)
The competent authorities of the Contracting States shall endeavour to resolve any difficulties or doubts arising as to the application of this Convention.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Convention.
ARTICLE 26 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Convention or of the domestic laws of the Contracting States concerning taxes to which this Convention applies insofar as the taxation thereunder is not contrary to this Convention, or for the prevention of fiscal evasion in relation to such taxes. The exchange of information is not restricted by Article 1. Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) involved in the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Convention applies. Such persons or authorities shall use the information only for such purposes.
(2)
In no case shall the provisions of paragraph (1) be construed so as to impose on one of the Contracting States the obligation-
(a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information, the disclosure of which would be contrary to public policy (ordre public).
ARTICLE 27 Diplomatic and Consular Officials
Nothing in this Convention shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special agreements. ARTICLE 28 Refunds
(1)
Taxes withheld at the source in one of the Contracting States will be refunded by request of the taxpayer or of the State of which he is a resident if the right to collect the said taxes is affected by the provisions of this Convention.
(2)
Claims for refund, that shall be produced within the time limit fixed by the law of the Contracting State which is obliged to carry out the refund, shall be accompanied by an official certificate of the Contracting State of which the taxpayer is a resident certifying the existence of the conditions required for being entitled to the application of the allowances provided for by this Convention.
(3)
The competent authorities of the Contracting States shall settle the mode of application of this Article, in accordance with the provisions of Article 25 of this Convention.
CHAPTER VI FINAL PROVISIONS
ARTICLE 29 Entry Into Force
(1)
This Convention shall be ratified and the instruments of ratification shall be exchanged at Rome as soon as possible.
(2)
The Convention shall enter into force on the date of the exchange of instruments of ratification and its provisions shall have effect-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in respect of income derived on or after 1 July 1976;
(ii) in respect of other Australian tax, for any year of income beginning on or after 1 July 1976;
(b) in Italy-
in respect of income assessable for taxable periods beginning on or after 1 July 1976.
(3)
Claims for refund or credits arising in accordance with this Convention in respect of any tax payable by residents of either of the Contracting States in respect of income which is subject to tax and to which this Convention applies in accordance with paragraph (2) of this Article and which was derived before the entry into force of this Convention, shall be lodged within three years from the date of entry into force of this Convention or from the date the tax was charged whichever is later.
ARTICLE 30 Termination
This Convention shall remain in force until terminated by one of the Contracting States. Either Contracting State may terminate the Convention, through the diplomatic channel, not earlier than five years after its entry into force by giving notice of termination at least six months before the end of the calendar year. In such event, the Convention shall cease to be effective-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in respect of income derived on or after 1 July in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, for any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in Italy-
in respect of income assessable for taxable periods beginning on or after 1 July in the calendar year next following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed the present Convention.
Done in duplicate at Canberra the fourteenth day of December 1982 in the English and Italian languages, both texts being equally authoritative.
PROTOCOL
JOHN HOWARD
For the Government of AustraliaSERGIO ANGELETTI
For the Government of the Republic of Italy
(1)
With reference to Articles 7 and 9-
If the information available to the competent authority of one of the Contracting States is inadequate to determine the profits of an enterprise on which tax may be imposed in that State in accordance with Article 7 or Article 9 of the Convention, nothing in those Articles shall prevent the application of any law of that State relating to the determination of the tax liability of a person provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles applicable under Articles 7 and 9.
(2)
With reference to paragraph (6) of Article 8-
The Italian taxes to which the Agreement therein referred to shall apply, with effect from the date of their entry into force, are the following-
(i) the individual income tax (l'imposta sul reddito delle persone fisiche);
(ii) the corporate income tax (l'imposta sul reddito delle persone giuridiche);
(iii) the local income tax (l'imposta locale sui redditi).If, in Australia, a tax (not being Australian tax referred to in Article 1 of the said Agreement) is imposed on profits derived by an enterprise of Italy from the operation of aircraft in international traffic, the taxes to which the Agreement shall apply in Italy shall thereupon cease to include the local income tax (l'imposta locale sui redditi).
(3)
With reference to Article 9-
Notwithstanding the provisions of Article 9, an enterprise of one of the Contracting States may be taxed by that Contracting State as if that Article had not come into effect but, so far as it is practicable to do so, in accordance with the principles applicable under that Article.
(4)
With reference to Article 12-
The term "payments" includes credits or any amount credited and a reference to royalties paid includes royalties credited. The term "royalties" includes payments or credits for total or partial forbearance in respect of the use of a property or right referred to in paragraph (3).
(5)
With reference to Article 24-
The tax paid in respect of income by way of dividend in one of the Contracting States that is to be allowed as a credit against tax payable in respect of that income in the other Contracting State shall not include tax paid in respect of the profits out of which the dividend is paid.
(6)
With reference to paragraph (1) of Article 25-
The expression "notwithstanding the remedies provided by the national laws" means that the mutual agreement procedure is not alternative to the national contentious proceedings which shall be, in any case, preventively initiated, when the claim is related to an assessment of Italian tax not in accordance with this Convention.
(7)
With reference to Article 28-
The provisions of paragraph (3) shall not prevent the Contracting States from carrying out other practices for the allowance of the taxation reductions provided for in this Convention.
(8)
If, in a Convention for the avoidance of double taxation that is subsequently made between Australia and a third State being a State that at the date of signature of this Protocol is a member of the Organisation for Economic Co-operation and Development, Australia shall agree 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 (2) of Article 10; 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 (2) of Article 11; 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 (2) of Article 12, the Government of Australia shall immediately inform the Government of the Republic of Italy in writing through the diplomatic channel and shall enter into negotiations with the Government of the Republic of Italy to review the provisions in subparagraphs (i), (ii) and (iii) above in order to provide the same treatment for Italy as that provided for the third State.Done in duplicate at Canberra the fourteenth day of December 1982 in the English and Italian languages, both texts being equally authoritative.
JOHN HOWARD
For the Government of AustraliaSERGIO ANGELETTI
For the Government of the Republic of Italy
Sch 21 added by No 57 of 1983. The Italian Convention entered into force on 5 November 1985.
(Repealed by No 45 of 2011)
History
Sch 22 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Korean Convention from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 22 formerly read:
SCHEDULE 22 - Korean Convention
Section 3
CONVENTION BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE REPUBLIC OF KOREA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
CHAPTER I SCOPE OF THE CONVENTION
ARTICLE 1 Personal Scope
This Convention shall apply to persons who are residents of one or both of the Contracting States. ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Convention shall apply are-
(a) in Korea:
(i) the income tax;
(ii) the corporation tax; and
(iii) the inhabitant tax;
(b) in Australia:
the Australian income tax, including the additional tax upon the undistributed amount of the distributable income of a private company.
(2)
This Convention shall also apply to any identical or substantially similar taxes which are imposed by either Contracting State after the date of signature of this Convention in addition to, or in place of, the existing taxes. At the end of each calendar year, the competent authority of each Contracting State shall notify the competent authority of the other Contracting State of any substantial changes which have been made in the laws of either State relating to the taxes to which this Convention applies.
CHAPTER II DEFINITIONS
ARTICLE 3 General Definitions
(1)
For the purposes of this Convention, unless the context otherwise requires-
(a) the term "Australia" means the Commonwealth of Australia and, when used in a geographical sense, includes-
(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 Coral Sea Islands Territory; and
(vi) any area adjacent to the territorial limits of Australia or of the said Territories in respect of which there is for the time being in force, consistently with international law, a law of Australia or of a State or part of Australia or of a Territory aforesaid dealing with the exploitation of any of the natural resources of the sea-bed and subsoil of the continental shelf;
(b) the term "Korea" means the Republic of Korea and, when used in a geographical sense, it includes any area adjacent to the territorial sea of the Republic of Korea which, in accordance with international law, has been or may hereafter be designated under the laws of the Republic of Korea as an area within which the sovereign rights of the Republic of Korea with respect to the sea-bed and subsoil and their natural resources may be exercised;
(c) the terms "a Contracting State" and "the other Contracting State" mean Australia or Korea, as the context requires;
(d) the term "person" means an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is assimilated to a body corporate for tax purposes;
(f) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;
(g) the term "tax" means Australian tax or Korean tax, as the context requires;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Convention applies by virtue of Article 2;
(i) the term "Korean tax" means tax imposed by Korea, being tax to which this Convention applies by virtue of Article 2;
(j) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or his authorized representative, and in the case of Korea, the Minister of Finance or his authorized representative; and
(k) the term "international traffic", in relation to the operation of ships or aircraft by a resident of a Contracting State, means operations of ships or aircraft other than operations of ships or aircraft which are confined solely to places in the other Contracting State, and for this purpose the carriage of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as operations confined solely to places in that State.
(2)
In this Convention, the terms "Australian tax" and "Korean tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes to which this Convention applies by virtue of Article 2.
(3)
In the application of this Convention by a Contracting State, any term not defined in this Convention shall, unless the context otherwise requires, have the meaning which it has under the laws of that Contracting State relating to the taxes to which this Convention applies.
ARTICLE 4 Residence
(1)
For the purposes of this Convention, a person is, subject to paragraph (2), a resident of a Contracting State-
(a) in the case of Australia, if the person is a resident of Australia for the purposes of Australian tax; and
(b) in the case of Korea, if the person is a resident of Korea for the purposes of Korean tax.
(2)
A person is not a resident of a Contracting State for the purposes of this Convention if he is liable to tax in that State in respect only of income from sources in that State.
(3)
Where by reason of the preceding provisions of this Article an individual is a resident of both Contracting States, then his status shall be determined in accordance with the following rules-
(a) he shall be deemed to be a resident solely of the Contracting State in which he has a permanent home available to him;
(b) if he has a permanent home available to him in both Contracting States, or if he does not have a permanent home available to him in either of them, he shall be deemed to be a resident solely of the Contracting State with which his personal and economic relations are the closer.For purposes of this paragraph in determining the Contracting State with which an individual's personal and economic relations are the closer, regard shall be given to his citizenship or nationality (if he is a citizen or national of a Contracting State).
(4)
Where by reason of the provisions of paragraphs (1) and (2) a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Convention, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" includes especially-
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) land used for agricultural, pastoral or forestry purposes.
(3)
A building site or a construction, installation or assembly project constitutes a permanent establishment only if it exists for more than six months.
(4)
An enterprise shall not be deemed to have a permanent establishment merely by reason of one or more of the following-
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or of collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(5)
An enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if-
(a) it carries on supervisory activities in that State for more than six months in connection with a building site, or a construction, installation or assembly project which is being undertaken in that State; or
(b) substantial equipment is being used in that State for more than twelve months by, for or under contract with the enterprise in exploration for, or the exploitation of, natural resources, or in activities connected with such exploration or exploitation.
(6)
A person acting in a Contracting State on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (7) applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if-
(a) he has, and habitually exercises in that State, an authority to conclude contracts binding the enterprise, unless his activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting, he manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise, provided that this provision shall apply only in relation to the goods or merchandise so manufactured or processed.
(7)
An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that Contracting State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of his business as such a broker or agent.
(8)
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.
(9)
The principles set forth in paragraphs (1) to (8) inclusive shall also be applied in determining for the purposes of paragraph (6) of Article 11 and paragraph (5) of Article 12 of this Convention whether an enterprise of a Contracting State has a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of either Contracting State, has a permanent establishment in a Contracting State.CHAPTER III TAXATION OF INCOME
ARTICLE 6 Income from Real Property
(1)
Income derived by a resident of a Contracting State from land (including any building or other construction) situated in the other Contracting State may be taxed in the other State.
(2)
The term "land" shall have the meaning which it has under the law of the Contracting State in which the land in question is situated and it shall include any lease of such land and any estate or direct interest in or over such land whether improved or not. 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 shall be deemed to be an estate or direct interest in land situated in the Contracting State in which the mineral deposits, oil or gas wells, quarries or natural resources are situated.
(3)
The provisions of paragraph (1) shall also apply to the income from land of an enterprise and to income from land used for the performance of professional services.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph (3), where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
Where the correct amount of profits attributable to a permanent establishment is incapable of determination or the ascertaining thereof presents exceptional difficulties, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
(6)
Where profits include items of income which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article.
ARTICLE 8 Ships and Aircraft
(1)
Profits of a resident of a Contracting State from the operation of ships or aircraft in international traffic shall be taxable only in that State.
(2)
The provisions of paragraph (1) shall also apply to profits derived from participation in a pool, a joint business or an international operating agency.
ARTICLE 9 Associated Enterprises
(1)
Where a person subject to the taxing jurisdiction of a Contracting State and any other person are related and where conditions are operative between such related persons in their commercial or financial relations which are different from those which might be expected to operate if such persons were unrelated persons dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of those persons, but by reason of those conditions, have not so accrued, may be included in the profits of that person and taxed accordingly.
(2)
A person is related to another person for purposes of this Convention if either person participates directly or indirectly in the management, control, or capital of the other, or if any third person or persons participates or participate directly or indirectly in the management, control, or capital of both.
(3)
This Article shall apply only where both Contracting States have a tax interest.
(4)
Notwithstanding the provisions of this Article, an enterprise of a Contracting State may be taxed by that State as if this Article had not come into effect but, so far as it is practicable to do so, in accordance with the principles of this Article.
(5)
Where profits on which an enterprise of a Contracting State has been charged to tax in that State are also included, by virtue of paragraph (1) or (4), in the profits of an enterprise of the other Contracting State and taxed accordingly, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the first-mentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Convention in relation to the nature of the income, and for this purpose the competent authorities of the Contracting Statesshall if necessary consult each other.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of a Contracting State, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends.
(3)
The term "dividends" in this Article means income from shares and other income which is subjected to the same taxation treatment as income from shares by the laws of the Contracting State of which the company making the distribution is a resident.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In any such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Dividends paid by a company which is a resident of a Contracting State, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. Provided that this paragraph shall not apply in relation to dividends paid by any company which by reason of paragraph (1) of Article 4 is a resident of Australia and which by reason of that paragraph is also a resident of Korea.
(6)
Nothing in this Convention shall be construed as preventing a Contracting State from imposing on the income of a company which is a resident of the other Contracting State, tax in addition to the taxes referred to in Article 2 in relation to the first-mentioned Contracting State which are payable by a company which is a resident of the first-mentioned State, provided that any such additional tax shall not exceed 15 per cent of the amount by which the taxable income of the first-mentioned company of a year of income exceeds the tax payable on that taxable income to the first-mentioned State. Any tax payable to a Contracting State on the undistributed profits of a company which is a resident of the other Contracting State shall be calculated as if that company were not liable to the additional tax referred to in this paragraph and had paid dividends of such amount that tax equal to the amount of that additional tax would have been payable on the dividends in accordance with paragraph (2) of this Article.
ARTICLE 11 Interest
(1)
Interest arising in a Contracting State, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the interest.
(3)
Interest derived by the Government of a Contracting State or by any other body exercising governmental functions in or in a part of a Contracting State, or by a bank performing central banking functions in a Contracting State, shall be exempt from tax in the other Contracting State.
(4)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to income from money lent by the taxation law of the Contracting State in which the income arises.
(5)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the interest, being a resident of a Contracting State, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the indebtedness in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(6)
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political or administrative subdivision of that State or a local authority of that State or a person who, by reason of paragraph (1) of Article 4 is a resident of that State. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(7)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the taxpayer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Convention.
ARTICLE 12 Royalties
(1)
Royalties arising in a Contracting State, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the royalties.
(3)
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 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 paragraph (a), any such equipment as is mentioned in paragraph (b) or any such knowledge or information as is mentioned in paragraph (c);
(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 of a property or right referred to in this paragraph.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the royalties, being a resident of a Contracting State, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political or administrative subdivision of that State or a local authority of that State or a person who, by reason of paragraph (1) of Article 4, is a resident of that State. Where, however, the person paying the royalties, whether he is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties or between both of them and some other person, the amount of the royalties paid, having regard to what they are paid for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Convention.
ARTICLE 13 Alienation of Property
(1)
Income from the alienation of real property may be taxed in the Contracting State in which that property is situated.
(2)
For the purposes of this Article-
(a) the term "real property" shall include-
(i) a lease of land or any other direct interest in or over land;
(ii) rights to exploit, or to explore for, natural resources; and
(iii) shares or comparable interests in a company, the assets of which consist wholly or principally of direct interests in or over land in a Contracting State or of rights to exploit, or to explore for, natural resources in a Contracting State;
(b) real property shall be deemed to be situated-
(i) where it consists of direct interests in or over land - in the Contracting State in which the land is situated;
(ii) where it consists of rights to exploit, or to explore for, natural resources - in the Contracting State in which the natural resources are situated or the exploration may take place; and
(iii) where it consists of shares or comparable interests in a company, the assets of which consist wholly or principally of direct interests in or over land in a Contracting State or of rights to exploit, or to explore for, natural resources in a Contracting State - in the Contracting State in which the assets or the principal assets of the company are situated.
(3)
Income derived by an enterprise of a Contracting State from the alienation of ships or aircraft operated in international traffic while owned by that enterprise or of personal property pertaining to the operation of those ships or aircraft shall be taxable only in that State.
ARTICLE 14 Independent Personal Services
(1)
Income derived by an individual who is a resident of a Contracting State in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base.
(2)
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 18, 19 and 20, salaries, wages and other similar remuneration derived by an individual who is a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if-
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the year of income of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of a Contracting State may be taxed in that Contracting State.
ARTICLE 16 Directors' Fees
Directors' fees and other similar payments derived by a resident of a Contracting State in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other Contracting State. ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by a resident of a Contracting State as an entertainer (such as a theatre, motion picture, radio or television artiste, or a musician, or an athlete) from his personal activities as such exercised in the other Contracting State, may be taxed in that other State.
(2)
Where income in respect of personal activities exercised by an entertainer in his capacity as such accrues not to the entertainer himself but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
(3)
Notwithstanding the provisions of paragraph (1), income derived by an entertainer from his personal activities as such in a Contracting State shall be taxable only in the other Contracting State if his visit to the first-mentioned State is supported substantially from the public funds of that other State or of one of its political subdivisions or local authorities.
(4)
Notwithstanding the provisions of paragraph (2), where income in respect of personal activities as such of an entertainer in a Contracting State accrues not to that entertainer himself but to another person, that income shall be taxable only in the other Contracting State if that person is supported substantially from the public funds of that other State or of one of its political subdivisions or local authorities, or if that person is a non-profit organisation of that other State.
ARTICLE 18 Pensions and Annuities
(1)
Subject to the provisions of paragraph (2) of Article 19, any pension or any annuity paid to a resident of a Contracting State shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
ARTICLE 19 Government Service
(1)
(a) Remuneration, other than a pension or annuity, paid by a Contracting State or a political subdivision or local authority of that Contracting State to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.
(b) However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who-
(i) is a national or citizen of that State; or
(ii) did not become a resident of that State solely for the purpose of rendering the services.
(2)
(a) Any pension paid by, or out of funds created by, a Contracting State or a political subdivision or local authority of that Contracting State to an individual in respect of services rendered to that State or subdivision 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.
(3)
The provisions of Articles 15, 16 and 18 shall apply to remuneration and pensions in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or local authority of that Contracting State.
(4)
The provisions of paragraphs (1) and (2) of this Article shall likewise apply in respect of remuneration or pensions paid, in the case of Korea, by the Bank of Korea, the Export-Import Bank of Korea, and the Korea Trade Promotion Corporation and, in the case of Australia, by the Reserve Bank of Australia.
ARTICLE 20 Professors and Teachers
An individual who is a resident of a Contracting State and who, at the invitation of any university, college, school or other recognised educational institution, visits the other Contracting State for a period not exceeding two years solely for the purpose of teaching or research or both at such educational institution shall be taxable only in the first-mentioned State on his remuneration for such teaching or research. ARTICLE 21 Students and Trainees
Where a student or trainee, who is a resident of a Contracting State or who was a resident of that Contracting State immediately before visiting the other Contracting State and who is temporarily present in the other Contracting State solely for the purpose of his education or training, receives payments from sources outside the other Contracting State for the purpose of his maintenance or education, those payments shall be exempt from tax in the other Contracting State. ARTICLE 22 Income Not Expressly Mentioned
(1)
Items of income of a resident of a Contracting State which are not expressly mentioned in the foregoing Articles of this Convention shall be taxable only in that Contracting State.
(2)
However, if such income is derived by a resident of a Contracting State from sources in the other Contracting State, such income may also be taxed in the Contracting State in which it arises.
(3)
The provisions of paragraph (1) shall not apply to income derived by a resident of a Contracting State where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
ARTICLE 23 Source of Income
Income derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8 and 10 to 17 may be taxed in the other Contracting State, shall, for the purposes of Article 24 and of the income tax law of that other State, be deemed to be income from sources in that other State.CHAPTER IV METHODS OF ELIMINATION OF DOUBLE TAXATION
ARTICLE 24
(1)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Korean tax paid under the law of Korea and in accordance with this Convention, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Korea shall be allowed as a credit against Australian tax payable on the income on which the Korean tax was paid. However, where the income is a dividend paid by a company which is a resident of Korea, the credit shall only take into account such tax in respect thereof as is additional to any tax payable by the company on the profits out of which the dividend is paid.
(2)
In the case of a resident of Korea, double taxation shall be avoided in accordance with this paragraph. Subject to the provisions of Korean tax law regarding the allowance as a credit against Korean tax of tax payable in any country other than Korea (which shall not affect the general principle hereof) Australian tax payable (excluding in the case of a dividend tax payable in respect of the profits out of which the dividends are paid) under the laws of Australia and in accordance with this Convention, whether directly or by deduction, in respect of income from sources within Australia shall be allowed as a credit against Korean tax payable in respect of that income. The credit shall not, however, exceed that proportion of Korean tax which the income from sources within Australia bears to the entire income subject to Korean tax.
(3)
(a) For the purposes of paragraph (4), the term "Korean tax forgone" means-
(i) in the case of interest derived by a resident of Australia which is exempted from Korean tax in accordance with the relevant legislation, the amount which, under the law of Korea and in accordance with this Convention, would have been payable as Korean tax if the interest had not been so exempt and if the tax referred to in paragraph (2) of Article 11 were not to exceed 10 per cent of the gross amount of the interest; and
(ii) in the case of royalties derived by a resident of Australia which are exempted either wholly or partly from Korean tax in accordance with the relevant legislation, the amount or, where the royalties are partly exempt, the additional amount which, under the law of Korea and in accordance with this Convention, would have been payable as Korean tax if the royalties had not been so wholly or partly exempt, and if the tax referred to in paragraph (2) of Article 12 were not to exceed 10 per cent of the gross amount of the royalties.
(b) In subparagraph (a), the term "the relevant legislation" means those provisions of the laws of Korea relating to Korean tax which are agreed in letters exchanged from time to time between the Minister of Finance of Korea and the Treasurer of Australia for the purposes of this paragraph.
(4)
(a) For the purposes of paragraph (1), an amount of Korean tax forgone shall be deemed to be an equivalent amount ofKorean tax paid;
(b) For the purposes of the income tax law of Australia-
(i) an amount of interest referred to in subparagraph (3)(a)(i) shall be deemed to be increased by the amount of Korean tax forgone in respect of that interest; and
(ii) an amount of royalties referred to in subparagraph (3)(a)(ii) shall be deemed to be increased by the amount of Korean tax forgone in respect of those royalties.
(5)
Paragraphs (3) and (4) shall not apply in relation to income derived in any year of income after the year of income that ends on 30 June in the calendar year fifth following the calendar year in which this Convention is signed or any later date that may be agreed by the Governments of the Contracting States in letters exchanged for this purpose.
CHAPTER V SPECIAL PROVISIONS
ARTICLE 25 Mutual Agreement Procedure
(1)
Where a person considers that the actions of one or both of the Contracting States result or will result for him in taxation not in accordance with the provisions of this Convention, he may, notwithstanding the remedies provided by the domestic law of those States, present his case to the competent authority of the Contracting State of which he is a resident. The case must be presented within three years from the first notification of the action resulting in taxation not in accordance with the provisions of this Convention.
(2)
The competent authority shall endeavour, if the objection appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with the Convention. Any solution reached shall be implemented notwithstanding any time limits in the domestic laws of the Contracting States.
(3)
The competent authorities of the Contracting States shall seek to resolve by agreement any difficulties or doubts arising as to the application or interpretation of this Convention. In particular the competent authorities of the Contracting States shall seek to agree as to with which of the Contracting States an individual described in subparagraph (3)(b) of Article 4 has closer personal and economic relations or in which of the Contracting States the place of effective management of a person other than an individual described in paragraph (4) of that Article is situated.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Convention.
ARTICLE 26 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out the provisions of this Convention or of the domestic laws of the Contracting States concerning the taxes to which this Convention applies insofar as the taxation thereunder is not contrary to this Convention. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to the taxes to which this Convention applies and shall be used only for such purposes.
(2)
In no case shall the provisions of paragraph (1) be construed so as to impose on a Contracting State the obligation-
(a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;
(b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information, the disclosure of which would be contrary to public policy.
ARTICLE 27 Diplomatic Agents and Consular Officers
Nothing in this Convention shall affect the fiscal privileges of diplomatic agents or consular officers under the general rules of international law or under the provisions of special agreements.CHAPTER VI FINAL PROVISIONS
ARTICLE 28 Entry Into Force
(1)
Each Contracting State shall notify the other by note through the diplomatic channel of the completion of the procedure required by its law for the bringing into force of this Convention. This Convention shall enter into force on the first day of the month second following the month in which the later of these notifications is given.
(2)
This Convention shall have effect-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year in which this Convention is signed; and
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year in which this Convention is signed;
(b) in Korea-
(i) in respect of tax withheld at source on amounts paid or credited to a non-resident, in relation to income derived on or after 1 January in the calendar year in which this Convention is signed; and
(ii) in respect of other Korean tax, in relation to income of any year of income beginning on or after 1 January in the calendar year in which this Convention is signed.
ARTICLE 29 Termination
This Convention shall remain in force indefinitely, but the Government of Australia or the Government of Korea may on or before 30 June in any calendar year after the expiration of 5 years from the date of its entry into force give to the other Government through the diplomatic channel written notice of termination and, in that event, this Convention shall cease to be effective-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the notice of termination is given; and
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year next following that in which the notice is given;
(b) in Korea-
(i) in respect of tax withheld at source on amounts paid or credited to a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the notice of termination is given; and
(ii) in respect of other Korean tax, in relation to income of 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.IN WITNESS WHEREOF the undersigned, being duly authorised thereto by their respective Governments, have signed this Convention.
Done in duplicate at Canberra this twelfth day of July of the year one thousand nine hundred and eighty-two in the English and Korean languages, both texts being equally authoritative.
PROTOCOL
For the Government of Australia:
JOHN HOWARDFor the Government of the Republic of Korea:
HA JONG YOON
(1)
With reference to Article 2,the Convention shall also apply to the Korean defence tax where charged by reference to the income tax or the corporation tax.
(2)
With reference to Article 7,the Convention shall not apply to profits of an enterprise from carrying on a business of any form of insurance, other than life insurance.
(3)
With reference to paragraph (6) of Article 10,the Governments of the Contracting States acknowledge that the additional tax referred to in that paragraph applicable at the time at which the Convention is signed is, in the case of Australia, only a tax of 5 per cent levied on the reduced taxable income of a company which is not a resident of Australia, in accordance with Section 128T of the Income Tax Assessment Act 1936.
(4)
With reference to paragraph (1) of Article 24,the Governments of the Contracting States acknowledge that a company which is a resident of Australia is, in accordance with the provisions of the taxation law of Australia in force at the date of signature of the Convention, entitled to a rebate in its assessment at the average rate of tax payable by the company in respect of dividends that are included in its taxable income and are received from a company which is a resident of Korea. In the event that Australia should cease to allow a company which is a resident of Australia a rebate in its assessment at the average rate of tax payable by the company in respect of dividends derived from sources in Korea and included in the taxable income of the company, the Governments of the Contracting States will enter into negotiations in order to establish new provisions concerning the credit to be allowed by Australia against its tax on the dividends.
(5)
With reference to paragraph (2) of Article 24,if subsequently to the signature of the Convention Korea provides relief from its tax on intercorporate dividends, or in a convention with another country agrees to give credit for the tax of the other country on profits out of which dividends are paid to a resident of Korea, it shall immediately notify Australia and enter into negotiations in order to establish new provisions concerning the credit to be allowed by Korea against its tax on dividends.
(6)
In general,if in a convention for the avoidance of double taxation that is subsequently made between Australia and a third State Australia should agree-
(a) to reduce below 15 per cent the rate of its tax on dividends paid by a company which is a resident of Australia and to which a resident of the third State is beneficially entitled; or
(b) to include an Article dealing with non-discrimination,the Government of Australia shall immediately inform the Government of Korea and shall enter into negotiations with the Government of Korea with a view to providing treatment in relation to Korea comparable with that provided in relation to that third State.
IN WITNESS WHEREOF the undersigned, being duly authorised thereto by their respective Governments, have signed this Protocol.
Done in duplicate at Canberra this twelfth day of July of the year one thousand nine hundred and eighty-two in the English and Korean languages, both texts being equally authoritative.
For the Government ofAustralia:
JOHN HOWARDFor the Government of the Republic of Korea:
HA JONG YOON
Sch 22 added by No 57 of 1983. The Korean agreement entered into force on 1 January 1984.
(Repealed by No 45 of 2011)
History
Sch 23 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the 2006 Norwegian Convention from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 23 formerly read:
SCHEDULE 23 - 2006 Norwegian Convention
Note: see section 3.
CONVENTION BETWEEN AUSTRALIA AND THE KINGDOM OF NORWAY FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAXES ON INCOME AND THE PREVENTION OF FISCAL EVASION
ARTICLE 1 Persons Covered
This Convention shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes covered
(1)
The existing taxes to which this Convention shall apply are:
(a) in the case of Australia:
(i) the income tax; andimposed under the federal law of Australia;
(ii) the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources,
(b) in the case of Norway:
(i) the tax on general income;
(ii) the tax on personal income;
(iii) the special tax on petroleum income;
(iv) the resource rent tax on income from production of hydro-electric power;
(v) the withholding tax on dividends; and
(vi) the tax on remuneration to non-resident artistes, etc.
(2)
This Convention shall apply also to any identical or substantially similar taxes that are imposed under the federal law of Australia or the law of Norway after the date of signature of this Convention in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any significant changes that have been made in the law of their respective States relating to the taxes to which this Convention applies within a reasonable period of time after those changes.
(3)
For the purposes of Article 24, the taxes to which this Convention shall apply are taxes of every kind and description imposed on behalf of the Contracting States, or their political subdivisions or local authorities.
(4)
For the purposes of Articles 26 and 27, the taxes to which this Convention shall apply are:
(a) in the case of Australia, taxes of every kind and description imposed under the federal tax laws administered by the Commissioner of Taxation; and
(b) in the case of Norway, taxes of every kind and description.
ARTICLE 3 General definitions
(1)
For the purposes of this Convention, 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; andand 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 seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "Norway" means the land territory, internal waters, the territorial sea and the area beyond the territorial sea where the Kingdom of Norway, according to Norwegian legislation and in accordance with international law, may exercise rights with respect to the seabed and subsoil and their natural resources; the terms do not comprise Svalbard, Jan Mayen and the Norwegian dependencies ("biland");
(c) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" shall refer to Australia or Norway, as the context requires;
(d) the term "Australian tax" means tax imposed by Australia, being tax to which this Convention applies by virtue of paragraphs 1 and 2 of Article 2;
(e) the term "Norwegian tax" means tax imposed by Norway or its political subdivisions or local authorities, being tax to which this Convention applies by virtue of paragraphs 1 and 2 of Article 2;
(f) the term "business" includes the performance of professional services and of other activities of an independent character;
(g) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(h) 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 Norway, the Minister of Finance or an authorised representative of the Minister;
(i) the term "enterprise" applies to the carrying on of any business;
(j) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;
(k) the term "international traffic" means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when such transport is solely between places in the other Contracting State;
(l) the term "national", in relation to a Contracting State, means:
(i) any individual possessing the nationality or citizenship of that Contracting State; and
(ii) any company deriving its status as such from the laws in force in that Contracting State;
(m) the term "person" includes an individual, a company and any other body of persons;
(n) the term "tax" means Australian tax or Norwegian tax as the context requires, but does not include any penalty or interest imposed under the law of either Contracting State relating to its tax;
(o) the term "recognised stock exchange" means:
(i) the Australian Stock Exchange and any other Australian stock exchange recognised as such under Australian law;
(ii) the Oslo Stock Exchange and any other Norwegian stock exchange recognised as such under Norwegian law; and
(iii) any other stock exchange agreed upon by the competent authorities.
(2)
As regards the application of the Convention at any time by a Contracting State, 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 State concerning the taxes to which the Convention applies, any meaning under the applicable tax law of that State prevailing over a meaning given to the term under other law of that State.
ARTICLE 4 Residence
(1)
For the purposes of this Convention, the term "resident of a Contracting State" 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 Norway, a person who is liable to tax therein by reason of domicile, residence, place of management or any other criterion of a similar nature.The Government of a Contracting State or a political subdivision or local authority of that State is also a resident of that State for the purposes of the Convention.
(2)
A person is not a resident of a Contracting State for the purposes of this Convention if the person is liable to tax in that State in respect only of income from sources in that State.
(3)
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the person's status shall be determined as follows:
(a) the individual shall be deemed to be a resident only of the State in which a permanent home is available to that individual; but if a permanent home is available in both States, or in neither of them, that individual shall be deemed to be a resident only of the State with which the individual's personal and economic relations are closer (centre of vital interests);
(b) if the State in which the centre of vital interests is situated cannot be determined,the individual shall be deemed to be a resident only of the State of which that individual is a national;
(c) if the individual is a national of both States or of neither of them, the competent authorities of the Contracting States shall endeavour to resolve the question by mutual agreement.
(4)
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident only of the State in which its place of effective management is situated.
(5)
Where under this Convention any income, profits or gains are relieved from tax in a Contracting State and, under the law in force in the other Contracting State, an individual in respect of that income or those profits or gains is exempt from tax by virtue of being a temporary resident of the other State within the meaning of the applicable tax laws of that other State, then the relief to be allowed under this Convention in the first-mentioned State shall not apply to the extent that that income or those profits or gains are exempt from tax in the other State.
ARTICLE 5 Permanent establishment
(1)
For the purposes of this Convention, the term "permanent establishment" means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" includes especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place relating to the exploration for or exploitation of natural resources; and
(g) an agricultural, pastoral or forestry property.
(3)
Notwithstanding the provisions of paragraphs 1 and 2, an enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if:
(a) it has a building site or construction or installation project in that State, or a supervisory or consultancy activity connected therewith, which lasts more than six months; or
(b) it furnishes services, including consultancy services, for the same or a connected project, through its employees or other personnel engaged for such purposes, within a Contracting State for a period or periods aggregating more than six months within any twelve month period; or
(c) it maintains substantial equipment for rental or other purposes within that other State (excluding equipment let under a hire-purchase agreement) for more than six months; or
(d) a person acting in a Contracting State on behalf of an enterprise of the other Contracting State manufactures or processes in the first-mentioned State for the enterprise goods or merchandise belonging to the enterprise.
(4)
(a) The duration of activities under subparagraph 3(a) will be determined by aggregating the periods during which activities are carried on in a Contracting State by associated enterprises provided that the activities of the enterprise in that State are substantially the same as the activities carried on in that State by its associate.
(b) The period during which two or more associated enterprises are carrying on concurrent activities will be counted only once for the purpose of determining the duration of activities.
(c) Under this Article, an enterprise shall be deemed to be associated with another enterprise if:
(i) one is controlled directly or indirectly by the other; or
(ii) both are controlled directly or indirectly by the same third person or persons.
(5)
Notwithstanding the preceding provisions of this Article, an enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage or display of goods or merchandise belonging to the enterprise; or
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage or display; or
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; or
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character.
(6)
Notwithstanding the provisions of paragraphs 1 and 2, where a person-other than an agent of an independent status to whom paragraph 7 applies-is acting on behalf of an enterprise and has, and habitually exercises, in a Contracting State an authority to conclude contracts on behalf of the enterprise, that enterprise shall be deemed to have a permanent establishment in that State in respect of any activities which that person undertakes for that enterprise, unless the activities of such person are limited to those mentioned in paragraph 5 and are, in relation to the enterprise, of a preparatory or auxiliary character.
(7)
An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a person who is a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of the person's business as such a broker or agent.
(8)
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
(9)
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of this Convention whether there is a permanent establishment in a State other than one of the Contracting States and whether an enterprise other than an enterprise of one of the Contracting States has a permanent establishment in one of the Contracting States.
ARTICLE 6 Income from real property
(1)
Income derived by a resident of a Contracting State from real property may be taxed in the Contracting State in which the real property is situated.
(2)
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, including a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine those deposits or resources; and
(ii) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources.
(b) in the case of Norway, means immovable property according to the laws of Norway, and shall also include:
(i) property accessory to immovable property;
(ii) rights to which the provisions of the general law respecting landed property apply;
(iii) usufruct of immovable property; and
(iv) 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.Ships and aircraft shall not be regarded as real property.
(3)
Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
(4)
The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of real property.
(5)
The provisions of paragraphs 1, 3, and 4 shall also apply to income from real property of an enterprise.
ARTICLE 7 Business profits
(1)
The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In determining the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
(5)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(6)
For the purposes of the preceding paragraphs, the profits to be attributed tothe permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.
(7)
Where profits include items of income or gains which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article.
(8)
Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits from insurance with non-residents provided that if the relevant law in force in either Contracting State at the date of signature of this Convention is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(9)
Where:
(a) a resident of a Contracting State is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated in that other State and that share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Shipping and air transport
(1)
Profits of an enterprise of a Contracting State derived from the operation of ships or aircraft in international traffic shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph 1, profits of an enterprise of a Contracting State derived from the operation of ships or aircraft may be taxed in the other Contracting State to the extent that they are profits derived directly or indirectly from ship or aircraft operations confined solely to places in that other State.
(3)
The provisions of paragraphs 1 and 2 shall also apply to profits derived from the participation in a pool, a joint business or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise which are shipped in a Contracting State and are discharged at a place in that State shall be treated as profits from ship or aircraft operations confined solely to places in that State.
(5)
The provisions of paragraphs 1, 2 and 3 shall apply to profits derived by the joint Norwegian, Danish and Swedish air transport consortium Scandinavian Airlines System (SAS), but only insofar as profits derived by SAS Norge AS, the Norwegian partner of the Scandinavian Airlines System (SAS), are in proportion to its share in that organisation.
ARTICLE 9 Associated enterprises
(1)
Where:
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the profits accruing to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
(3)
Where profits on which an enterprise of a Contracting State has been charged to tax in that State are also included, by virtue of the provisions of paragraph 1 or 2, in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the first-mentioned State, if that State considers the adjustment justified. In determining such an adjustment, due regard shall be had to the other provisions of this Convention and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of a Contracting State for the purposes of its tax, being dividends beneficially owned by a resident of the other Contracting State, may be taxed in that other State.
(2)
However, those dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed:
(a) 5 percent of the gross amount of the dividends, if the beneficial owner of those dividends is a company (other than a partnership) which holds directly at least 10 per cent of the voting power in the company paying the dividends; and
(b) 15 per cent of the gross amount of the dividends in all other cases,provided that if the relevant law in either Contracting State at the date of signature of this Convention is varied otherwise than in minor respects so as not to affect its general character, the Contracting States shall consult each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(3)
Notwithstanding the provisions of paragraph 2 of this Article, dividends shall not be taxed in the Contracting State of which the company paying the dividends is a resident if the beneficial owner of the dividends is a company that is a resident of the other Contracting State that has owned shares representing 80 per cent or more of the voting power of the company paying the dividends for a twelve month period ending on the date the dividend is declared and the company that is the beneficial owner of the dividends:
(a) has its principal class of shares listed on a recognised stock exchange specified in subparagraph (i) or (ii) of subparagraph (o) of paragraph 1 of Article 3 and is regularly traded on one or more recognised stock exchanges;
(b) is owned directly or indirectly by one or more companies whose principal class of shares is listed on a recognised stock exchange specified in subparagraph (i) or (ii) of subparagraph (o) of paragraph 1 of Article 3 and is regularly traded on one or more recognised stock exchanges; or
(c) does not meet the requirements of subparagraphs (a) or (b) of this paragraph but the competent authority of the first-mentioned Contracting State determines, in accordance with the law of that State, that the establishment, acquisition or maintenance of the company that is the beneficial owner of the dividends and the conduct of its operations did not have as one of its principal purposes the obtaining of benefits under this Convention. The competent authority of the first-mentioned Contracting State shall consult the competent authority of the other Contracting State before refusing to grant benefits of this Convention under this subparagraph.
(4)
The term "dividends" as used in this Article means income from shares or other rights, not being debt-claims, participating in profits, as well as other amounts which are subjected to the same taxation treatment as income from shares by the law of the State of which the company making the distribution is a resident for the purposes of its tax.
(5)
The provisions of paragraphs 1, 2 and 3 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment. In such case, the provisions of Article 7 shall apply.
(6)
Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company - being dividends beneficially owned by a person who is not a resident of the other Contracting State - except insofar as the holding in respect of which such dividends are paid is effectively connected with a permanent establishment situated in that other State, even if the dividends paid consist wholly or partly of profits or income arising in such other State. This paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Norway for the purposes of Norwegian tax.
(7)
No relief shall be available under this Article if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of shares or other rights in respect of which the dividend is paid to take advantage of this Article by means of that creation or assignment.
ARTICLE 11 Interest
(1)
Interest arising in a Contracting State and beneficially owned by a resident of the other Contracting State may be taxed in that other State.
(2)
However, that interest may also be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
Notwithstanding paragraph 2, interest arising in a Contracting State and beneficially owned by a resident of the other Contracting State may not be taxed in the first-mentioned State if:
(a) the interest is derived from the investment of official reserve assets by the government of a Contracting State, its monetary institutions or a bank performing central banking functions in that State; or
(b) the interest is derived by a financial institution which is unrelated to and dealing wholly independently with the payer. For the purposes of this Article, the term "financial institution" means a bank or other enterprise substantially deriving its profits by raising debt finance in the financial markets or by taking deposits at interest and using those funds in carrying on a business of providing finance.
(4)
Notwithstanding paragraph 3, interest referred to in subparagraph (b) of that paragraph may be taxed in the State in which it arises at a rate not exceeding 10 per cent of the gross amount of the interest if the interest is paid as part of an arrangement involving back-to-back loans or other arrangement that is economically equivalent and intended to have a similar effect to back-to-back loans.
(5)
The term "interest" in this Article includes interest from government securities or from bonds or debentures, whether or not secured by mortgage, interest from any other form of indebtedness, as well as income which is subjected to the same taxation treatment as income from money lent by the law of the Contracting State in which the income arises.
(6)
The provisions of paragraphs 1 and 2, subparagraph (b) of paragraph 3 and paragraph 4 of this Article shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises, through a permanent establishment situated therein, and the indebtedness in respect of which the interest is paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
(7)
Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment, then such interest shall be deemed to arise in the State in which the permanent establishment is situated.
(8)
Where, by reason of a special relationship between the payer and the beneficial owner of the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the beneficial owner in the absence of that relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Convention.
(9)
No relief shall be available under this Article if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of the indebtedness in respect of which the interest is paid to take advantage of this Article by means of that creation or assignment.
ARTICLE 12 Royalties
(1)
Royalties arising in a Contracting State and beneficially owned by a resident of the other Contracting State may be taxed in that other State.
(2)
However, those royalties may also be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 5 per cent of the gross amount of the royalties.
(3)
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; or
(b) the supply of scientific, technical, industrial or commercial knowledge or information; or
(c) the supply of any assistance that is 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) or any such knowledge or information as is mentioned in subparagraph (b); or
(d) the use of, or the right to use:
(i) motion picture films; or
(ii) films or audio or video tapes or disks, or any other means of image or sound reproduction or transmission for use in connection with television, radio or other broadcasting; or
(e) the use of, or the right to use, some or all of the part of the radiofrequency spectrum specified in a spectrum licence; or
(f) total or partial forbearance in respect of the use or supply of any property or right referred to in this paragraph.
(4)
The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated therein, and the right or property in respect of which the royalties are paid or credited is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment, then such royalties shall be deemed to arise in the State in which the permanent establishment is situated.
(6)
Where, by reason of a special relationship between the payer and the beneficial owner of the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the amount of the payments or credits shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Convention.
(7)
No relief shall be available under this Article if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of rights in respect of which the royalties are paid or credited to take advantage of this Article by means of that creation or assignment.
ARTICLE 13 Alienation of property
(1)
Income, profits or gains derived by a resident of a Contracting State from the alienation of real property referred to in Article 6 and situated in the other Contracting State may be taxed in that other State.
(2)
Income, profits or gains from the alienation of property, other than real property, that forms part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise), may be taxed in that other State.
(3)
Income, profits or gains of an enterprise of a Contracting State from the alienation of ships or aircraft operated by that enterprise in international traffic, or of property (other than real property) pertaining to the operation of those ships or aircraft, shall be taxable only in that State.
(4)
Income, profits or gains derived by a resident of a Contracting State from the alienation of any shares or comparable interests deriving more than 50 per cent of their value directly or indirectly from real property situated in the other Contracting State, may be taxed in that other State.
(5)
Gains of a capital nature from the alienation of any property, other than that referred to in the preceding paragraphs shall be taxable only in the Contracting State of which the alienator is a resident.
ARTICLE 14 Income from employment
(1)
Subject to the provisions of Articles 15, 17 and 18, salaries, wages and other similar remuneration derived by an individual who is a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
(a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the year of income of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is a resident of the first-mentioned State; and
(c) the remuneration is not borne by a permanent establishment which the employer has in that other State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic may be taxed in the Contracting State of which the enterprise operating the ship or aircraft is a resident. However, where such remuneration is derived in respect of an employment exercised aboard a ship registered in the Norwegian International Ships' register (NIS), the remuneration shall be taxable only in the Contracting State where the recipient is a resident.
(4)
Where a resident of a Contracting State derives remuneration in respect of an employment exercised aboard an aircraft operated in international traffic by the Scandinavian Airlines System (SAS) consortium, such remuneration shall be taxable only in that State.
ARTICLE 15 Directors' fees
Directors' fees and other similar payments derived by a resident of a Contracting State in that person's capacity as a member of the board of directors, or similar body, of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 16 Entertainers and sportspersons
(1)
Notwithstanding the provisions of Articles 7 and 14, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson, from that person's personal activities as such exercised in the other Contracting State, may be taxed in that other State.
(2)
Where income in respect of personal activities exercised by an entertainer or a sportsperson in that person's capacity as such accrues not to that person but to another person, that income may, notwithstanding the provisions of Articles 7 and 14, be taxed in the Contracting State in which the activities of the entertainer or sportsperson are exercised.
(3)
The provisions of paragraphs 1 and 2 shall not apply to income derived from activities performed in a Contracting State by entertainers or sportspersons if the visit to that State is wholly or mainly supported by public funds of the other Contracting State or a political subdivision or local authority of that State. In such a case, the income is taxable only in the Contracting State of which the entertainer or sportsperson is a resident.
ARTICLE 17 Pensions and annuities
(1)
Subject to the provisions of paragraph 2 of Article 18, pensions and annuities paid to a resident of a Contracting State shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
(3)
Any alimony or other maintenance payment arising in a Contracting State and paid to a resident of the other Contracting State shall be taxable only in the first-mentioned State.
ARTICLE 18 Government service
(1)
Salaries, wages and other similar remuneration, other than a pension or annuity, paid by a Contracting State or a political subdivision or local authority of that State to an individual in respect of services rendered to that State or subdivision or authorityshall be taxable only in that State. However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the individual is a resident of that other State who:
(a) is a national of that State; or
(b) did not become a resident of that State solely for the purpose of rendering the services.
(2)
Any pension paid by, or out of funds created by, a Contracting State or a political subdivision or local authority of that State to an individual in the respect of services rendered to that State or subdivision or authority (including, in the case of Norway, any national insurance element of such pension) shall be taxable only in that State. However, such pensions shall be taxable only in the other Contracting State if the individual is a resident of, and a national of, that State.
(3)
The provisions of Articles 14, 15, 16 and 17 shall apply to salaries, wages and other similar remuneration and to pensions in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or local authority of that State.
ARTICLE 19 Students
Payments which a student who is or was immediately before visiting a Contracting State a resident of the other Contracting State and who is temporarily present in the first-mentioned State solely for the purpose of the student's education receives for the purpose of the student's maintenance or education shall not be taxed in that State, provided that such payments arise from sources outside that State.ARTICLE 20 Offshore activities
(1)
The provisions of this Article shall apply notwithstanding any other provision of this Convention.
(2)
A person who is a resident of a Contracting State and carries on activities offshore in the other Contracting State in connection with the exploration or exploitation of the seabed or subsoil or their natural resources situated in that other State shall, subject to paragraph 3 of this Article, be deemed in relation to those activities to be carrying on business in that other State through a permanent establishment situated therein.
(3)
The provisions of paragraph 2 shall not apply where the activities are carried on in a Contracting State for a period or periods not exceeding 30 days in the aggregate in any twelve month period commencing or ending in the year of income of that State. However, for the purposes of this paragraph:
(a) activities carried on by an enterprise associated with another enterprise shall be regarded as carried on by the enterprise with which it is associated if the activities in question are substantially the same as those carried on by the last-mentioned enterprise;
(b) the period during which two or more associated enterprises are carrying on concurrent activities will be counted only once for the purpose of determining the duration of activities; and
(c) an enterprise shall be deemed to be associated with another enterprise if:
(i) one is controlled directly or indirectly by the other; or
(ii) both are controlled directly or indirectly by the same third person or persons.
(4)
Salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment connected with the exploration or exploitation of the seabed or subsoil or their natural resources situated in the other Contracting State may, to the extent that the employment is exercised offshore in that other State, be taxed in that other State. However, such remuneration shall be taxable only in the first-mentioned State if the employment is exercised offshore for an employer who is not a resident of the other State and provided that the employment is carried on for a period or periods not exceeding in the aggregate 30 days in any twelve month period commencing or ending in the year of income of that other State.
ARTICLE 21 Other income
(1)
Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Convention shall be taxable only in that State.
(2)
The provisions of paragraph 1 shall not apply to income, other than income from real property as defined in paragraph 2 of Article 6, derived by a resident of a Contracting State who carries on business in the other Contracting State through a permanent establishment situated therein and the right or property in respect of which the income is paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
(3)
Notwithstanding the provisions of paragraphs 1 and 2, items of income of a resident of a Contracting State not dealt with in the foregoing Articles of this Convention from sources in the other Contracting State may also be taxed in that other State.
ARTICLE 22 Source of income
(1)
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8, 10 to 16, 18 and 20, may be taxed in the other Contracting State shall for the purposes of the law of that other State relating to its tax be deemed to arise from sources in that other State.
(2)
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8, 10 to 16, 18 and 20, may be taxed in the other Contracting State shall for the purposes of Article 23 and of the law of the first-mentioned State relating to its tax be deemed to arise from sources in the other State.
ARTICLE 23 Methods of elimination of double taxation
(1)
Subject to the provisions of the law of Australia from time to time inforce which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article), Norwegian tax paid under the law of Norway and in accordance with this Convention, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Norway shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
Subject to the provisions of the laws of Norway regarding the allowance as a credit against Norwegian tax of tax payable in a territory outside Norway (which shall not affect the general principle hereof):
(a) where a resident of Norway derives income which, in accordance with the provisions of this Convention, may be taxed in Australia, Norway shall allow as a deduction from the tax on the income of that resident, an amount equal to the income tax paid in Australia on that income. Such deduction shall not, however, exceed that part of the income tax, as computed before the deduction is given, which is attributable to the income which may be taxed in Australia.
(b) where in accordance with any provision of the Convention income derived by a resident of Norway is exempt from tax in Norway, Norway may nevertheless include such income in the tax base, but shall allow as a deduction from the Norwegian tax on income that part of the Norwegian income tax which is attributable to the income derived from Australia.
ARTICLE 24 Non-discrimination
(1)
Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, in particular with respect to residence, are or may be subjected.
(2)
The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities in similar circumstances.
(3)
Except where the provisions of paragraph 1 of Article 9, paragraph 8 of Article 11, or paragraph 6 of Article 12, apply, interest, royalties and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State shall for the purpose of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the first-mentioned State.
(4)
Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of the first-mentioned State in similar circumstances are or may be subjected.
(5)
Nothing contained in this Article shall be construed as obliging a Contracting State to grant to individuals who are residents of the other Contracting State any of the personal allowances, reliefs and reductions for tax purposes which are granted to its own resident individuals.
(6)
This Article shall not apply to any provision of the law of a Contracting State which:
(a) is designed to prevent the avoidance or evasion of taxes; or
(b) does not permit the deferral of tax arising on the transfer of an asset where the subsequent transfer of the asset by the transferee would be beyond the taxing jurisdiction of the Contracting State under its laws; or
(c) provides for consolidation of group entities for treatment as a single entity for tax purposes provided that a company, being a resident of that State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, may access such consolidation treatment on the same terms and conditions as other companies that are residents of the first-mentioned State; or
(d) does not allow tax rebates or credits in relation to dividends paid by a company that is a resident of that State for purposes of its tax; or
(e) provides deductions to eligible taxpayers for expenditure on research and development; or
(f) is otherwise agreed to be unaffected by this Article in an Exchange of Notes between the Contracting States.
(7)
In this Article, provisions of the law of a Contracting State which are designed to prevent avoidance or evasion of taxes include:
(a) measures designed to address thin capitalisation, dividend stripping and transfer pricing;
(b) controlled foreign company, transferor trusts and foreign investment fund rules; and
(c) measures designed to ensure that taxes can be effectively collected and recovered, including conservancy measures.
ARTICLE 25 Mutual agreement procedure
(1)
Where a person considers that the actions of one or both of the Contracting States result or will result for the person in taxation not in accordance with this Convention, the person may, irrespective of the remedies provided by the domestic law of those States concerning taxes to which this Convention applies, present a case to the competent authority of the Contracting State of which the person is a resident or, if the case comes under paragraph 1 of Article 24, to that of the Contracting State of which the person is a national. The case must be presented within 3 years from the first notification of the action resulting in taxation not in accordance with this Convention.
(2)
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with this Convention. The solution so reached shall be implemented notwithstanding any time limits in the domestic law of the Contracting States.
(3)
The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of this Convention. They may also consult together for the elimination of double taxation in cases not provided for in this Convention.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs.
(5)
For the purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of this Convention may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph 3 of this Article or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States.
ARTICLE 26 Exchange of information
(1)
The competent authorities of the Contracting States shall exchange such information as is forseeably relevant for carrying out the provisions of this Convention or to the administration or enforcement of the domestic laws concerning taxes referred to in Article 2, insofar as the taxation thereunder is not contrary to the Convention. The exchange of information is not restricted by Article 1.
(2)
Any information received under paragraph 1 by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to the taxes referred to in paragraph 1, or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
(3)
In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State; or
(b) to supply information which is not obtainable by the competent authority under the laws or in the normal course of the administration of that or of the other Contracting State; or
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public).
(4)
If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other State may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting State to decline to supply information solely because it has no domestic interest in such information.
(5)
In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person.
ARTICLE 27 Assistance in the collection of taxes
(1)
The Contracting States shall lend assistance to each other in the collection of revenue claims. This assistance is not restricted by Article 1. The competent authorities of the Contracting States may by mutual agreement settle the mode of application of this Article.
(2)
The term "revenue claim" as used in this Article means an amount owed in respect of taxes referred to in Article 2, insofar as the taxation thereunder is not contrary to this Convention or any other instrument to which the Contracting States are parties, as well as interest, administrative penalties and costs of collection or conservancy related to such amount.
(3)
When a revenue claim of a Contracting State is enforceable under the laws of that State and is owed by a person who, at that time, cannot, under the laws of that State, prevent its collection, that revenue claim shall, at the request of the competent authority of that State, be accepted for purposes of collection by the competent authority of the other Contracting State. That revenue claim shall be collected by that other State in accordance with the provisions of its laws applicable to the enforcement and collection of its own taxes as if the revenue claim were a revenue claim of that other State.
(4)
When a revenue claim of a Contracting State is a claim in respect of which that State may, under its law, take measures of conservancy with a view to ensure its collection, that revenue claim shall, at the request of the competent authority of that State, be accepted for purposes of taking measures of conservancy by the competent authority of the other Contracting State. That other State shall take measures of conservancy in respect of that revenue claim in accordance with the provisions of its laws as if the revenue claim were a revenue claim of that other State even if, at the time when such measures are applied, the revenue claim is not enforceable in the first-mentioned State or is owed by a person who has a right to prevent its collection.
(5)
Notwithstanding the provisions of paragraphs 3 and 4, a revenue claim accepted by a Contracting State for purposes of paragraph 3 or 4 shall not, in that State, be subject to the time limits or accorded any priority applicable to a revenue claim under the laws of that State by reason of its nature as such. In addition, a revenue claim accepted by a Contracting State for the purposes of paragraph 3 or 4 shall not, in that State, have any priority applicable to that revenue claim under the laws of the other Contracting State.
(6)
Proceedings with respect to the existence, validity or the amount of a revenue claim of a Contracting State shall not be brought before the courts or administrative bodies of the other Contracting State.
(7)
Where, at any time after a request has been made by a Contracting State under paragraph 3 or 4 and before the other Contracting State has collected and remitted the relevant revenue claim to the first-mentioned State, the relevant revenue claim ceases to be:
(a) in the case of a request under paragraph 3, a revenue claim of the first-mentioned State that is enforceable under the laws of that State and is owed by a person who, at that time, cannot, under the laws of that State, prevent its collection; or
(b) in the case of a request under paragraph 4, a revenue claim of the first-mentioned State in respect of which that State may, under its laws, take measures of conservancy with a view to ensure its collection,the competent authority of the first-mentioned State shall promptly notify the competent authority of the other State of that fact and, at the option of the other State, the first-mentioned State shall either suspend or withdraw its request.
(8)
In no case shall the provisions of this Article be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State; or
(b) to carry out measures which would be contrary to public policy (ordre public); or
(c) to provide assistance if the other Contracting State has not pursued all reasonable measures of collection or conservancy, as the case may be, available under its laws or administrative practice; or
(d) to provide assistance in those cases where the administrative burden for that State is clearly disproportionate to the benefit to be derived by the other Contracting State; or
(e) to provide assistance if that State considers that the taxes with respect to which assistance is requested are imposed contrary to generally accepted taxation principles.
ARTICLE 28 Members of diplomatic missions and consular posts
(1)
Nothing in this Convention shall affect the fiscal privileges of members of diplomatic missions or consular posts under the general rules of international law or under the provisions of special international agreements.
(2)
Insofar as, due to fiscal privileges granted to members of diplomatic missions and consular posts under the general rules of international law or under the provisions of special international agreements, income is not subject to tax in the receiving State, the right to tax shall be reserved to the sending State.
ARTICLE 29 Entry into force
(1)
The Contracting States shall notify each other in writing through the diplomatic channel of the completion of their domestic requirements for the entry into force of this Convention.
(2)
This Convention shall enter into force on the date of the last notification, and thereupon the Convention shall have effect:
(a) in the case of Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following the date on which the Convention enters into force;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following the date on which the Convention enters into force;
(b) in the case of Norway, in respect of taxes on income relating to the calendar year (including accounting periods beginning in any such year) next following that in which the Convention enters into force and subsequent years;
(c) for purposes of Article 26, from the date of entry into force of this Convention; and
(d) for purposes of Article 27, from a date to be agreed in an exchange of notes through the diplomatic channel.
(3)
The Convention between Australia and the Kingdom of Norway for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and on capital signed at Canberra on 6 May 1982, shall be terminated and shall cease to have effect from the dates on which this Convention becomes effective in accordance with paragraph 2 of this Article.
ARTICLE 30 Termination
This Convention shall continue in effect indefinitely, but either Contracting State may terminate the Convention by giving written notice of termination, through the diplomatic channel, to the other State at least six months before the end of any calendar year beginning after the expiration of five years from the date of its entry into force and, in that event, the Convention shall cease to be effective:
(a) in the case of Australia:
(i) in respect of withholding tax on incomethat is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in the case of Norway:
in respect of taxes on income relating to the calendar year (including accounting periods beginning in such year) next following that in which the notice is given and subsequent years.IN WITNESS WHEREOF the undersigned, being duly authorised, have signed this Convention.
DONE at Canberra on this eighth day of August two thousand and six, in duplicate in the English language.
FOR THE GOVERNMENT OF AUSTRALIA: FOR THE GOVERNMENT OF NORWAY: Hon. Peter Dutton
Minister for Revenue and Assistant Treasurer
[Signatures omitted]H.E. Lars Albert Wensell
Ambassador
Sch 23 substituted by No 136 of 2007, s 3 and Sch 2 item 6, effective 3 September 2007. The convention came into force 12 September 2007. Sch 23 formerly read:
SCHEDULE 23 - Norwegian Convention
Section 3
CONVENTION BETWEEN AUSTRALIA AND THE KINGDOM OF NORWAY FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME AND ON CAPITAL
ARTICLE 1 Personal Scope
This Convention shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Convention shall apply are-
(a) in Australia:the Australian income tax, including the additional tax upon the undistributed amount of the distributable income of a private company;
(b) in Norway:
(i) the national tax on income (inntektsskatt til staten);
(ii) the county municipal tax on income (inntektsskatt til fylkeskommunen);
(iii) the municipal tax on income (inntektsskatt til kommunen);
(iv) the national contributions to the Tax Equalisation Fund (fellesskatt til Skattefordelingsfondet);
(v) the national tax on capital (formuesskatt til staten);
(vi) the municipal tax on capital (formuesskatt til kommunen);
(vii) the national tax relating to income and capital from the exploration for and the exploitation of submarine petroleum resources and activities and work relating thereto, including pipeline transport of petroleum produced (skatt til staten vedrørende inntekt og formue i forbindelse med undersøkelse etter og utnyttelse av undersjøiske petroleumsforekomster og dertil knyttet virksomhet og arbeid, herunder rørledningstransport av utvunnet petroleum);
(viii) the national dues on remuneration to non-resident artistes (avgift til staten av honorarer som tilfaller kunstnere bosatt i utlandet);
(ix) the seamen's tax (sjømannsskatt).
(2)
This Convention shall also apply to any identical or substantially similar taxes which are imposed by either Contracting State after the date of signature of this Convention in addition to, or in place of, the existing taxes.
ARTICLE 3 General Definitions
(1)
In this Convention, unless the context otherwise requires-
(a) the term "Australia" means the Commonwealth of Australia and, when used in a geographical sense, includes-
(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 Coral Sea Islands Territory; and
(vi) any area adjacent to the territorial limits of Australia or of the said Territories in respect of which there is for the time being in force, consistently with international law, a law of Australia or of a State or part of Australia or of a Territory aforesaid dealing with the exploitation of any of the natural resources of the sea-bed and subsoil of the continental shelf;
(b) the term "Norway" means the Kingdom of Norway, including any area outside the territorial waters of the Kingdom of Norway where the Kingdom of Norway, according to Norwegian legislation and in accordance with international law, may exercise her rights with respect to the sea-bed and subsoil and their natural resources; the term does not comprise Svalbard, Jan Mayen and the Norwegian dependencies ("biland");
(c) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" mean Australia or Norway, as the context requires;
(d) the term "person" means an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is treated as a company or a body corporate for tax purposes;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Norway, as the context requires;
(g) the term "tax" means Australian tax or Norwegian tax, as the context requires;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Convention applies by virtue of Article 2;
(i) the term "Norwegian tax" means tax imposed by Norway or its political subdivisions or local authorities, being tax to which this Convention applies by virtue of Article 2;
(j) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or his authorised representative, and in the case of Norway, the Minister of Finance and Customs or his authorised representative.
(2)
In this Convention, the terms "Australian tax" and "Norwegian tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes to which this Convention applies by virtue of Article 2.
(3)
In the application of this Convention by a Contracting State, any term not defined in this Convention shall, unless the context otherwise requires, have the meaning which it has under the laws of that State relating to the taxes to which this Convention applies.
ARTICLE 4 Residence
(1)
For the purposes of this Convention, a person is a resident of one of the Contracting States-
(a) in the case of Australia, subject to the provisions of paragraph (2), if the person is a resident of Australia for the purposes of Australian tax; and
(b) in the case of Norway, if the person is liable to tax therein by reason of his domicile, residence, place of incorporation or any other criterion of a similar nature but not if he is liable to tax in Norway in respect only of income from sources therein.
(2)
In relation to income from sources in Norway, a person who is subject to Australian tax on income which is from sources in Australia shall not be treated as a resident of Australia unless the income from sources in Norway is subject to Australian tax or, if that income is exempt from Australian tax, it is so exempt solely because it is subject to Norwegian tax.
(3)
Where by reason of the preceding provisions of this Article an individual is a resident of both Contracting States, then his status shall be determined in accordance with the following rules:
(a) he shall be deemed to be a resident solely of the Contracting State in which he has a permanent home available to him;
(b) if he has a permanent home available to him in both Contracting States, or if he does not have a permanent home available to him in either of them, he shall be deemed to be a resident solely of the Contracting State with which his personal and economic relations are the closer.
(4)
For the purposes of the last preceding paragraph, an individual's citizenship or nationality of a Contracting State as well as his habitual abode shall be factors in determining the degree of his personal and economic relations with that Contracting State.
(5)
Where by reason of the provisions of paragraph (1), a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Convention, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially-
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property;
(h) a building site or construction, installation or assembly project which exists for more than twelve months.
(3)
Notwithstanding the preceding provisions of this Article, an enterprise shall not be deemed to have a permanent establishment merely by reason of-
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(4)
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if-
(a) it carries on supervisory activities in that State for more than twelve months in connection with a building site, or a construction, installation or assembly project which is being undertaken in that State; or
(b) substantial equipment is being used in that State by, for or under contract with the enterprise.
(5)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (6) applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if-
(a) he has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless his activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting, he manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
(6)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of his business as such a broker or agent.
(7)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise) shall not of itself make either company a permanent establishment of the other.
(8)
The principles set forth in paragraphs (1) to (7) inclusive shall be applied in determining for the purposes of paragraph (6) of Article 11 and paragraph (5) of Article 12 of this Convention whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
ARTICLE 6 Income from Real Property
(1)
Income from real property may be taxed in the Contracting State in which the real property is situated.
(2)
In 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 Norway, means immovable property according to the laws of Norway, and shall also include-
(i) property accessory to immovable property;
(ii) rights to which the provisions of the general law respecting landed property apply;
(iii) usufruct of immovable property; and
(iv) 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.Ships, boats and aircraft shall not be regarded as real property.
(3)
A lease of land, any other interest in or over land and any right referred to in any of the subparagraphs of paragraph (2) shall be regarded as situated where the land, mineral deposits, oil or gas wells, quarries or natural resources, as the case may be, are situated.
(4)
The provisions of paragraph (1) shall apply to income derived from the direct use, letting or use in any other form of real property.
(5)
The provisions of paragraphs (1), (3) and (4) shall also apply to the income from real property of an enterprise and to income from real property used for the performance of professional services.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State, but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph (3), where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
Insofar as it has been customary in a Contracting State to determine the profits to be attributed to a permanent establishment on the basis of an apportionment of the total profits of the enterprise to its various parts, nothing in paragraph (2) shall preclude that Contracting State from determining the profits to be taxed by such an apportionment as may be customary; the method of apportionment adopted shall, however, be such that the result shall be in accordance with the principles contained in this Article.
(5)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(6)
If the information available to the competent authority of a Contracting State is inadequate to determine the profits to be attributed to the permanent establishment of an enterprise, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
(7)
For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.
(8)
Where profits include items of income which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article.
(9)
Nothing in this Article shall affect the operation of any law of a Contracting State relating to taxation of profits from insurance with non-residents provided that if the relevant law in force in either State at the date of signature of this Convention is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
ARTICLE 8 Shipping and Air Transport
(1)
Profits from the operation of ships or aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1), such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
(3)
The provisions of paragraphs (1) and (2) shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organisation or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
(5)
The provisions of paragraphs (1) and (2) shall apply to profits derived by the joint Norwegian, Danish and Swedish air transport consortium Scandinavian Airlines System (SAS), but only insofar as profits derived by Det Norske Luftfartsselskap A/S (DNL), the Norwegian partner of the Scandinavian Airlines System (SAS), are in proportion to its share in that organisation.
ARTICLE 9 Associated Enterprises
(1)
Where-
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
If the information available to the competent authority of a Contracting State is inadequate to determine the profits to be attributed to an enterprise, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person, provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
(3)
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph (1) or (2), in the profits of an enterprise of the other Contracting State and taxed accordingly, the competent authority of the first-mentioned State shall, with a view to the provision of such relief to the first-mentioned enterprise as may be appropriate, consult with the competent authority of the other State.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends. This paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.
(3)
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the taxation law of the Contracting State of which the company making the distribution is a resident for the purposes of its tax.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. However, this paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Norway for the purposes of Norwegian tax.
(6)
Subject to the provisions of this Convention, a Contracting State may impose on the income of a company which is a resident of the other Contracting State, tax in addition to the income tax (in this paragraph called "the general income tax") payable by the company in respect of its taxable income; provided that the additional tax so imposed in respect of a year of income shall not exceed 15 per cent of the amount by which the taxable income of that year of income exceeds the general income tax payable in respect of the taxable income of that year of income.
ARTICLE 11 Interest
(1)
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
However, such interest may also be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
Interest derived by the Government of a Contracting State, or by any other body exercising governmental functions in, or in a part of, a Contracting State, or by a bank performing central bank functions in a Contracting State, shall be exempt from tax in the other Contracting State.
(4)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and interest from any other form of indebtedness as well as all other income assimilated to income from money lent by the taxation law of the Contracting State in which the income arises.
(5)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the indebtedness in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(6)
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether he is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise inthe State in which the permanent establishment or fixed base is situated.
(7)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Convention.
ARTICLE 12 Royalties
(1)
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
However, such royalties may also be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
(3)
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 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);
(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 of a property or right referred to in this paragraph.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid or credited is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether he is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties or between both of them and some other person the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Convention.
ARTICLE 13 Alienation of Property
(1)
Income or gains from the alienation of real property or of an interest in or over land or of a right to exploit, or to explore for, a natural resource may be taxed in the Contracting State in which the real property, the land or the natural resource is situated.
(2)
For the purposes of this Article, shares or comparable interests in a company, the assets of which consist wholly or principally of real property or of interests in or over land in one of the Contracting States or of rights to exploit, or to explore for, natural resources in one of the Contracting States, shall be deemed to be real property situated in the Contracting State in which the land or the natural resources are situated or in which the exploration may take place.
(3)
Subject to the provisions of paragraph (1), income from the alienation of capital assets of an enterprise of one of the Contracting States or of capital assets available to a resident of one of the Contracting States for the purpose of performing professional services or other independent activities shall be taxable only in that State, but, where those assets form part of the business property of a permanent establishment or fixed base situated in the other Contracting State, such income may be taxed in that other State.
(4)
Gains from the alienation of shares in a company the capital of which is wholly or partly divided into shares and which is a resident of Norway for the purposes of Norwegian tax, derived by an individual who is a resident of Australia, may be taxed in Norway.
(5)
Gains from the alienation of ships or aircraft operated in international traffic, or movable property pertaining to the operation of such ships or aircraft shall be taxable only in the Contracting State of which the alienator is a resident.
ARTICLE 14 Independent Personal Services
(1)
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless-
(a) he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities; in which case the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base; or
(b) he is present in the other State for a period or periods in any year of income exceeding 183 days or he is present in that State for a period or periods in any two consecutive years of income exceeding in the aggregate 183 days; in which case the income derived by the individual during such a period or periods may be taxed in the other State.
(2)
However, to the extent that the above-mentioned income is exempt from tax in the first-mentioned State, or upon the application of this Article will be exempt from tax in that State, the income may be taxed in the other State.
(3)
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if-
(a) the recipient is present in that other State for a period or periods in any year of income not exceeding in the aggregate 183 days in the year of income of that other State or he is present in that other State for a period or periods in any two consecutive years of income of that other State not exceeding in the aggregate 183 days; and
(b) the remuneration is paid by, or on behalf of, an employer who is a resident of the State of which the recipient is a resident; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State.However, to the extent that the above-mentioned remuneration is exempt from tax in the first-mentioned State, or upon the application of this Article will be exempt from tax in that State, the remuneration may be taxed in the other State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that Contracting State. Where a resident of Norway derives remuneration in respect of an employment exercised aboard an aircraft operated in international traffic by the Scandinavian Airlines System (SAS) consortium, such remuneration shall be taxable only in Norway.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a resident of one of the Contracting States in his capacity as a member of the board of directors or of a similar organ of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
(2)
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
(3)
Notwithstanding the provisions of paragraph (1) and Articles 14 and 15, income derived from activities performed in a Contracting State by entertainers shall be exempt from tax in that Contracting State if the visit to that State is substantially supported or sponsored by the other Contracting State and the entertainer is certified as qualifying under this provision by the competent authority of that other State.
ARTICLE 18 Pensions and Annuities
(1)
Pensions (including government pensions and payments under a Social Security system) and annuities paid to a resident of one of the Contracting States shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and fullconsideration in money or money's worth.
(3)
Any alimony or other maintenance payment arising in one of the Contracting States and paid to a resident of the other Contracting State, shall, if it is not an allowable deduction for the payer, be taxable only in the first-mentioned State.
ARTICLE 19 Government Service
(1)
Remuneration (other than a pension or annuity) paid by one of the Contracting States or a political subdivision or local authority of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen or national of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
(2)
The provisions of paragraph (1) shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by one of the Contracting States or a political subdivision or local authority of that State. In such a case, the provisions of Article 15 or Article 16, as the case may be, shall apply.
ARTICLE 20 Students
Where a student, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of his education, receives payments from sources outside that other State for the purpose of his maintenance or education, those payments shall be exempt from tax in that other State.ARTICLE 21 Income Not Expressly Mentioned
(1)
Items of income of a resident of one of the Contracting States which are not expressly mentioned in the foregoing Articles of this Convention shall be taxable only in that Contracting State.
(2)
However, if such income is derived by a resident of one of the Contracting States from sources in the other Contracting State, such income may also be taxed in the Contracting State in which it arises.
(3)
The provisions of paragraph (1) shall not apply to income derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
ARTICLE 22 Offshore Activities
(1)
The provisions of this Article have effect notwithstanding any other provision of this Convention.
(2)
A person who is a resident of one of the Contracting States and carries on activities offshore in the other Contracting State in connection with the exploration or exploitation of the sea-bed and subsoil and their natural resources situated in that other State shall, subject to paragraph (3) of this Article, be deemed in relation to those activities to be carrying on business in that other State through a permanent establishment or fixed base situated therein.
(3)
The provisions of paragraph (2) shall not apply where the activities are carried on for a period not exceeding 30 days in the aggregate in any 12 months period. However, for the purposes of this paragraph:
(a) activities carried on by an enterprise associated with another enterprise shall be regarded as carried on by the enterprise with which it is associated if the activities in question are substantially the same as those carried on by the last-mentioned enterprise;
(b) two enterprises shall be deemed to be associated if one is controlled directly or indirectly by the other, or both are controlled directly or indirectly by a third person or persons.
(4)
(a) Subject to subparagraph (b) of this paragraph, salaries, wages and similar remuneration derived by a resident of one of the Contracting States in respect of an employment connected with the exploration or exploitation of the sea-bed and subsoil and their natural resources situated in the other Contracting State shall, to the extent that the duties are performed offshore in that other State, be taxable only in that other State, provided that the employment offshore is carried on for a period exceeding 30 days in the aggregate in any 12 months period.
(b) Salaries, wages and similar remuneration derived by a resident of one of the Contracting States in respect of an employment, shall be taxable only in that Contracting State if the duties are performed, on behalf of an employer who is a resident of that State, in connection with the utilisation of petroleum reservoirs which extend across the trans-median line between a Contracting State and any other State, provided that there is an agreement between those two States for the joint exploitation of the reservoir, and the exploitation is performed simultaneously on both sides of the trans-median line.
ARTICLE 23 Source of Income
(1)
Income derived by a resident of Norway which, under any one or more of Articles 6 to 8, Articles 10 to 18 and Article 21 may be taxed in Australia, shall for the purposes of the income tax law of Australia be deemed to be income from sources in Australia.
(2)
Income derived by a resident of Australia which, under any one or more of Articles 6 to 8, Articles 10 to 18 and Article 21 may be taxed in Norway, shall for the purposes of paragraph (1) of Article 25 and of the income tax law of Australia be deemed to be income from sources in Norway.
ARTICLE 24 Capital
(1)
Capital represented by real property as defined in Article 6, owned by a resident of Australia and situated in Norway, may be taxed in Norway.
(2)
Capital represented by movable property forming part of the business property of a permanent establishment which an enterprise of Australia has in Norway or by movable property pertaining to a fixed base available to a resident of Australia in Norway for the purpose of performing independent personal services, may be taxed in Norway.
(3)
Capital represented by ships and aircraft operated in international traffic by a resident of Australia and by movable property pertaining to the operation of such ships and aircraft, shall be exempt from tax in Norway.
(4)
All other elements of capital of a resident of Australia shall be exempt from tax in Norway.
(5)
In the event that Australia should introduce a tax on capital, Australia shall advise Norway of the introduction of the tax and enter into negotiations with Norway with a view to agreeing to such amendments to this Article as may be appropriate.
ARTICLE 25 Methods of Elimination of Double Taxation
(1)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Norwegian tax paid under the law of Norway and in accordance with this Convention, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Norway (not including, in the case of a dividend, tax paid in respect of the profits out of which the dividend is paid) shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
In the case of Norway:
(a) Where a resident of Norway derives income which, in accordance with the provisions of this Convention, may be taxed in Australia, Norway shall, subject to the provisions of paragraphs (b) and (c), exempt such income from tax;
(b) Where a resident of Norway derives items of income which, in accordance with the provisions of Articles 8, 10, 11 and 12, paragraph (2) of Article 21 and Article 22 may be taxed in Australia, Norway shall allow as a deduction from the tax on the income of that person an amount equal to the tax paid in Australia. Such deduction shall not, however, exceed that part of the tax, as computed before the deduction is given, which is attributable to such items of income derived from Australia;
(c) Where in accordance with any provision of this Convention income derived by a resident of Norway is exempt from tax in Norway, Norway may nevertheless, in calculating the amount of tax on the remaining income of such resident, take into account the exempted income.
ARTICLE 26 Mutual Agreement Procedure
(1)
Where a resident of one of the Contracting States considers that the actions of the taxation authorities of one or both of the Contracting States result or will result for him in taxation not in accordance with this Convention, he may, notwithstanding the remedies provided by the domestic laws of those States, present his case to the competent authority of the Contracting State of which he is a resident. The case must be presented within three years from the first notification of the action giving rise to taxation not in accordance with this Convention.
(2)
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve by mutual agreement the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Convention. The solution so reached shall be implemented notwithstanding any time limits in the domestic laws of the Contracting States.
(3)
The competent authorities of the Contracting States shall jointly endeavour to resolve by mutual agreement any difficulties or doubts arising as to the application of this Convention.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Convention.
ARTICLE 27 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Convention or of the domestic laws of the Contracting States concerning the taxes to which this Convention applies insofar as the taxation thereunder is not contrary to this Convention. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Convention applies and shall be used only for such purposes.
(2)
In no case shall the provisions of paragraph (1) be construed so as to impose on a Contracting State the obligation-
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 28 Diplomatic and Consular Officials
Nothing in this Convention shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special agreements.ARTICLE 29 Entry into Force
This Convention shall enter into force on the date on which the Government of Australia and the Government of the Kingdom of Norway exchange notes through the diplomatic channel notifying each other that the last of such constitutional processes as are necessary to bring this Convention into force in Australia and Norway, as the case may be has been completed, and thereupon this Convention shall have effect-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July 1982;
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July 1982;
(b) in Norway-
in respect of taxes on income or on capital relating to the 1982 and subsequent calendar years (including accounting periods ending in those years).ARTICLE 30 Termination
This Convention shall remain in force indefinitely, but the Government of Australia or the Government of the Kingdom of Norway may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Government through the diplomatic channel written notice of termination and, in that event, this Convention shall cease to be effective-
(a) in Australia-
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July in the calendar year immediately following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year immediately following that in which the notice of termination is given;
(b) in Norway-
in respect of taxes on income or on capital relating to the calendar year immediately following that in which the notice is given, and subsequent calendar years (including accounting periods ending in those years).IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Convention.
DONE in duplicate at Canberra this sixth day of May One thousand nine hundred and eighty-two in the English language.
PROTOCOL
JOHN HOWARD
FOR THE GOVERNMENT OF AUSTRALIATORLEIV ANDA
FOR THE GOVERNMENT OF THE KINGDOM OF NORWAY
SECTION (1)
(1)
With reference to Articles 10, 11 and 12, if after 26 September 1980, in a Convention for the avoidance of double taxation that is made between Australia and a third State being a State that is a member of the Organisation for Economic Co-operation and Development, Australia shall agree to limit the rate of its taxation-
(a) 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 (2) of Article 10; or
(b) on interest arising in Australia to which a resident of the third State is entitled, to a rate less than that provided in paragraph (2) of Article 11; or
(c) on royalties arising in Australia to which a resident of the third State is entitled, to a rate less than that provided in paragraph (2) of Article 12,the Government of Australia shall immediately inform the Government of the Kingdom of Norway in writing through the diplomatic channel and shall enter into negotiations with the Government of the Kingdom of Norway to review the provisions specified in (a), (b) and (c) above in order to provide the same treatment for Norway as that provided for the third State.
SECTION (2)
(2)
With reference to Article 25,
(a) if, after 26 September 1980, in a Convention for the avoidance of double taxation that is made between Norway and a third State being a State that is a member of the Organisation for Economic Co-operation and Development, Norway shall agree to give special relief (holding privilege) from its tax in respect of dividends paid by a company which is a resident of that third State to a company resident in Norway, (not being relief that represents a continuation of relief provided for in any such Convention with that State that was in force at that date) the Government of the Kingdom of Norway shall immediately inform the Government of Australia in writing through the diplomatic channel and shall enter into negotiations with the Government of Australia to review the provisions of Article 25 in order to provide the same relief in respect of dividends paid by a company which is a resident of Australia;
(b) if Norway should by note forwarded through the diplomatic channel so request, paragraph (2) of Article 25 shall be replaced by the following text, which shall enter into force on the 30th day after receipt of the note is confirmed through the diplomatic channel, and shall apply in respect of taxes on income relating to the calendar year (including accounting periods ending in such year) immediately following that in which the exchange of notes is made:
(2) In the case of Norway:
Where a resident of Norway derives income which in accordance with the provisions of this Convention may be taxed in Australia, Norway shall allow as a deduction from the income tax of that person an amount equal to the tax paid in Australia. Such deduction shall not, however, exceed that part of the Norwegian tax, as computed before the deduction is given, which is appropriate to the income derived from Australia.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Protocol.
DONE in duplicate at Canberra this sixth day of May One thousand nine hundred and eighty-two in the English language.
JOHN HOWARD
FOR THE GOVERNMENT OF AUSTRALIATORLEIV ANDA
FOR THE GOVERNMENT OF THE KINGDOM OF NORWAYHistorySchedule 23 added by No 57 of 1983.
The Norwegian agreement entered into force on 19 October 1983.
Article 25(2) substituted at the request of Norway in accordance with the procedure provided under para (2)(b) of the signed Protocol, with effect from 6 September 1998, applicable in relation to taxes on income derived in the 1999 and subsequent calender years. Article 25(2) formerly read:
(2)
In the case of Norway:
(a) Where a resident of Norway derives income which, in accordance with the provisions of this Convention, may be taxed in Australia, Norway shall, subject to the provisions of paragraphs (b) and (c), exempt such income from tax;
(b) Where a resident of Norway derives items of income which, in accordance with the provisions of Articles 8, 10, 11 and 12, paragraph (2) of Article 21 and Article 22 may be taxed in Australia, Norway shall allow as a deduction from the tax on the income of that person an amount equal to the tax paid in Australia. Such deduction shall not, however, exceed that part of the tax, as computed before the deduction is given, which is attributable to such items of income derived from Australia;
(c) Where in accordance with any provision of this Convention income derived by a resident of Norway is exempt from tax in Norway, Norway may nevertheless, in calculating the amount of tax on the remaining income of such resident, take into account the exempted income.
(Repealed by No 45 of 2011)
History
Sch 24 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Maltese Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 24 formerly read:
SCHEDULE 24 - Maltese Agreement
Section 3
AGREEMENT BETWEEN AUSTRALIA AND MALTA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
CHAPTER I SCOPE OF THE AGREEMENT
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States. ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Agreement shall apply are:
(a) in Australia:
the Australian income tax, including the additional tax upon the undistributed amount of the distributable income of a private company;
(b) in Malta:
the income tax, including prepayments of tax whether made by deduction at source or otherwise.
(2)
This Agreement shall also apply to any identical or substantially similar taxes which are imposed by either Contracting State after the date of signature of this Agreement in addition to, or in place of, the existing taxes. As soon as possible after the end of each calendar year, the competent authority of each Contracting State shall notify the competent authority ofthe other Contracting State of any substantial changes which have been made in the laws of his State relating to the taxes to which this Agreement applies.
CHAPTER II DEFINITIONS
ARTICLE 3 General Definitions
(1)
In this Agreement, unless the context otherwise requires:
(a) the term "Australia" means the Commonwealth of Australia and, when used in a geographical sense, includes:
(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 Coral Sea Islands Territory; and
(vi) any area adjacent to the territorial limits of Australia or of the said Territories in respect of which there is for the time being in force, consistently with international law, a law of Australia or of a State or part of Australia or of a Territory aforesaid dealing with the exploitation of any of the natural resources of the sea-bed and subsoil of the continental shelf;
(b) the term "Malta" means the Republic of Malta and, when used in a geographical sense, means the Island of Malta, the Island of Gozo and the other islands of the Maltese archipelago, including the territorial waters thereof, and any area outside the territorial sea of Malta which, in accordance with international law, has been or may hereafter be designated, under the law of Malta concerning the continental shelf, as an area within which the rights of Malta with respect to the sea-bed and subsoil and their natural resources may be exercised;
(c) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" mean Australia or Malta, as the context requires;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Malta, as the context requires;
(g) the term "international traffic" means any transport by a ship or aircraft except where the ship or aircraft is operated solely between places within a Contracting State;
(h) the term "tax" means Australian tax or Malta tax, as the context requires;
(i) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(j) the term "Malta tax" means tax imposed by Malta, being tax to which this Agreement applies by virtue of Article 2;
(k) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or his authorized representative, and in the case of Malta, the Minister responsible for finance or his authorized representative.
(2)
In this Agreement, the terms "Australian tax" and "Malta tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes to which this Agreement applies by virtue of Article 2.
(3)
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State relating to the taxes to which this Agreement applies.
ARTICLE 4 Residence
(1)
For the purposes of this Agreement, a person is a resident of one of the Contracting States:
(a) in the case of Australia, subject to the provisions of paragraph (2), if the person is a resident of Australia for the purposes of Australian tax; and
(b) in the case of Malta, if the person is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature. A person is not a resident of Malta if he is liable to tax in Malta in respect only of income from sources therein.
(2)
In relation to income from sources in Malta, a person who is subject to Australian tax on income which is from sources in Australia shall not be treated as a resident of Australia unless the income from sources in Malta is subject to Australian tax or, if that income is exempt from Australian tax, it is so exempt solely because it is subject to Malta tax.
(3)
Where by reason of the preceding provisions of this Article an individual is a resident of both Contracting States, then his status shall be determined in accordance with the following rules:
(a) he shall be deemed to be a resident solely of the Contracting State in which he has a permanent home available to him;
(b) if he has a permanent home available to him in both Contracting States, or if he does not have a permanent home available to him in either of them, he shall be deemed to be a resident solely of the Contracting State with which his personal and economic relations are the closer.
(4)
In determining for the purposes of paragraph (3) the Contracting State with which an individual's personal and economic relations are the closer, the matters to which regard may be had shall include the citizenship of the individual.
(5)
Where by reason of the provisions of paragraph (1), a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Agreement, the term "permanent establishment", in relation to an enterprise, means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property;
(h) a building site or construction, installation or assembly project which exists for more than 183 days in any twelve-month period.
(3)
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(4)
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if:
(a) it carries on supervisory activities in that State for more than 183 days in any twelve-month period in connection with a building site, or a construction, installation or assembly project which is being undertaken in that State;
(b) there is being used in that State by, for or under contract with the enterprise substantial equipment including, but not limited to, an installation, drilling rig or ship used for, or in activities connected with, the exploration for or exploitation of natural resources; or
(c) it carries on supervisory activities in that State in connection with the use of equipment referred to in subparagraph (b).
(5)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (6) applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State:
(a) in respect of his activities in that behalf, if he has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless his activities are limited to those mentioned in paragraph (3) and are such that, if exercised through a fixed place of business, would not make that fixed place of business a permanent establishment under the provisions of that paragraph; or
(b) if, in so acting, he manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
(6)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of his business as such a broker or agent.
(7)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
(8)
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of this Agreement whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
CHAPTER III TAXATION OF INCOME
ARTICLE 6 Income from Real Property
(1)
Income from real property may be taxed in the Contracting State in which the real property is situated.
(2)
In 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; and
(ii) a right to receive variable or fixed payments as consideration for the working of, or the right to work or to explore for, mineral deposits, oil or gas wells, quarries or other places of extraction or exploitation of natural resources; and
(b) in the case of Malta, means immovable property according to the laws of Malta, and shall also include:
(i) property accessory to immovable property;
(ii) rights to which the provisions of the general law respecting landed property apply;
(iii) usufruct of immovable property; and
(iv) rights to variable or fixed payments in respect of the operation of mines or quarries or of the exploitation of or exploration for any natural resources.Ships, boats and aircraft shall not be regarded as real property.
(3)
A lease of land, any other interest in or over land and any right referred to in any of the subparagraphs of paragraph (2) shall be regarded as situated where the land, mineral deposits, oil or gas wells, quarries or natural resources, as the case may be, are situated or the exploration may take place.
(4)
The provisions of paragraph (1) shall apply to income derived from the direct use, letting or use in any other form of real property.
(5)
The provisions of paragraphs (1), (3) and (4) shall also apply to the income from real property of an enterprise and to income from real property used for the performance of professional services.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph (3), where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including the determination of such liability by the exercise of a discretion or the making of an estimate by the competent authority of that State in cases in which, from the information available to the competent authority of that State, it is not possible or not practicable to ascertain the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
(6)
For the purposes of the preceding paragraphs of this Article, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.
(7)
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
(8)
Nothing in this Article shall affect the operation of any law of a Contracting State relating to taxation of profits from insurance with non-residents provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
ARTICLE 8 Shipping and Air Transport
(1)
Profits from the operation of ships or aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1), such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
(3)
The provisions of paragraphs (1) and (2) shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organization or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
(5)
Notwithstanding the provisions of this Article, profits from the operation of ships in international traffic derived by a company which is a resident of Malta may be taxed in Australia unless the company proves that such profits are not relieved from Malta tax under the provisions of the Merchant Shipping Act, 1973, or under any identical or similar provision. The foregoing sentence, however, shall not apply if the company proves that not more than 25 per cent of its capital is owned, directly or indirectly, by persons who are not residents of Malta.
ARTICLE 9 Associated Enterprises
(1)
Where:
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including the determination of such liability by the exercise of a discretion or the making of an estimate by the competent authority of that State in cases in which, from the information available to the competent authority of that State, it is not possible or not practicable to determine the income to be attributed to an enterprise, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
(3)
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph (1) or (2), in the profits of an enterprise of the other Contracting State and taxed accordingly, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the first-mentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement in relation to the nature of the income and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but:
(a) in the case of tax charged by Australia:
that tax shall not exceed 15 per cent of the gross amount of the dividends;
(b) in the case of tax charged by Malta:
(i) such tax on the gross amount of the dividends shall not exceed that chargeable on the profits out of which the dividends are paid;
(ii) where such dividends are paid out of profits of a company which are subject to tax at a reduced rate of tax under special provisions designed to promote investments necessary for the economic development of Malta, the rate of Malta tax on the dividends shall not exceed such reduced rate.The provisions of this paragraph shall not affect the taxation of the company on the profits out of which the dividends are paid.
(3)
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the taxation law of the Contracting State of which the company making the distribution is a resident for the purposes of its tax.
(4)
The provisions of paragraph (2) shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In any such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. Provided that this paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Malta for the purposes of Malta tax.
ARTICLE 11 Interest
(1)
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the interest.
(3)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to income from money lent by the taxation law of the Contracting State in which the income arises.
(4)
The provisions of paragraph (2) shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the indebtedness in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether he is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 12 Royalties
(1)
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
(3)
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 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);
(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.
(4)
The provisions of paragraph (2) shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the property or right in respect of which the royalties are paid or credited is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether he is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of Property
(1)
Income or gains from the alienation of real property may be taxed in the Contracting State in which the real property is situated.
(2)
Income or gains from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of real property, may be taxed in the Contracting State in which the assets or the principal assets of the company are situated.
(3)
For the purposes of this Article:
(a) the term "real property" has the same meaning that it has in Article 6; and
(b) any lease, interest or right referred to in any subparagraph of paragraph (2) of that Article shall be regarded as situated where the land, mineral deposits, oil or gas wells, quarries or natural resources, as the case may be, are situated or the exploration may take place.
ARTICLE 14 Independent Personal Services
(1)
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State. However, if such an individual:
(a) has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities; or
(b) in a year of income or in the year immediately preceding a year of assessment, as the case may be, stays in the other Contracting State for a period or periods aggregating more than 183 days for the purpose of performing his activities; or
(c) derives, in a year of income or in the year immediately preceding a year of assessment, as the case may be, from residents of the other Contracting State gross remuneration exceeding twelve thousand five hundred Australian dollars or its equivalent in Malta pounds from performing his activities in that State,so much of the income derived by him as is attributable to activities so performed may be taxed in the other State.
(2)
The Treasurer of Australia and the Minister responsible for finance in Malta may agree in letters exchanged for the purpose to variations in the amount specified in subparagraph (c) of paragraph (1) and any variations so agreed shall have effect according to the tenor of the letters.
(3)
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities, as well as in the exercise of independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the year of income or in the year immediately preceding the year of assessment, as the case may be, of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State; and
(d) the remuneration is, or upon the application of this Article will be, subject to tax in the first-mentioned State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that State.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a resident of one of the Contracting States in his capacity as a member of the board of directors, or other comparablebody however described, of a company which is a resident of the other Contracting State may be taxed in that other State. ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
(2)
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
ARTICLE 18 Pensions and Annuities
(1)
Pensions (including government pensions) and annuities paid to a resident of one of the Contracting States shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
(3)
Notwithstanding anything in this Agreement, any pension or allowance that is paid by one of the Contracting States in respect of wounds, disabilities or death caused by war, or in respect of war service, and is exempt from tax under the law of that State, to a resident of the other Contracting State shall be exempt from tax in that other State.
ARTICLE 19 Government Service
(1)
Remuneration, other than a pension or annuity, paid by one of the Contracting States or a political subdivision or local authority of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
(2)
The provisions of paragraph (1) shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by one of the Contracting States or a political subdivision or local authority of that State. In such a case, the provisions of Article 15 or Article 16, as the case may be, shall apply.
(3)
Where remuneration is paid under a development assistance programme of a Contracting State, out of funds exclusively supplied by that State, to a specialist or volunteer seconded to the other Contracting State with the consent of that other State, such remuneration shall be deemed to have been paid by the first-mentioned State and shall be taxable only in that State.
ARTICLE 20 Students
Where a student, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of his education at a university, college, school or other similar educational institution, receives payments from sources outside that other State for the purpose of his maintenance or education, those payments shall be exempt from tax in that other State. ARTICLE 21 Income Not Expressly Mentioned
(1)
Items of income of a resident of one of the Contracting States which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable only in that State.
(2)
However, any such income derived by a resident of one of the Contracting States, from sources in the other Contracting State, may also be taxed in that other State.
(3)
The provisions of paragraph (1) shall not apply to income derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
ARTICLE 22 Sources of Income
Income derived by a resident of one of the Contracting States which, under any one or more of Articles 6 to 8, Articles 10 to 19 and Article 21, may be taxed in the other Contracting State shall, for the purposes of Article 23 and of the income tax law of that other State, be deemed to be income from sources in that other State.CHAPTER IV METHODS OF ELIMINATION OF DOUBLE TAXATION
ARTICLE 23
(1)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Malta tax paid under the law of Malta and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Malta (not including, in the case of a dividend, tax paid in respect of the profits out of which the dividend is paid) shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
A company which is a resident of Australia is, in accordance with the provisions of the taxation law of Australia in force at the date of signature of this Agreement, entitled to a rebate in its assessment at the average rate of tax payable by the company in respect of dividends that are included in its taxable income and are received from a company which is a resident of Malta. However, should the law so in force be amended so that the rebate in relation to the dividends ceases to be allowable under that law, Australia shall immediately advise Malta of the change and enter into negotiations with Malta in order to establish new provisions concerning the credit to be allowed by Australia against its tax on the dividends.
(3)
For the purposes of paragraph (1) and of the income tax law of Australia:
(a) a resident of Australia deriving income from sources in Malta consisting of dividends to which subparagraph (2)(b)(ii) of Article 10 applies, interest to which Article 11 applies or royalties to which Article 12 applies, being income in respect of which Malta tax has been wholly relieved or reduced for a limited period of time under the provisions of the Aids to Industries Ordinance 1959, so far as they were in force on, and have not been modified since, the date of signature of this Agreement, or have been modified only in minor respects so as not to affect their general character, or under any other provisions which may subsequently be agreed by the Contracting States in letters exchanged for the purpose through the diplomatic channel to be of a substantially similar character, shall be deemed to have paid Malta tax in an amount, or the Malta tax paid shall be deemed to have been increased by an amount, equal to the amount by which the Malta tax that otherwise would have been payable (which tax, in the case of dividends, shall not exceed 15 per cent and, in the case of royalties or interest, 10 per cent of the gross amount thereof) is reduced by the exemption or reduction granted; and
(b) the amount of the said dividends, interest or royalties shall be deemed to be the amount that would have been the amount of the dividends, interest or royalties if no Malta tax had been paid, increased by the amount by which the tax that otherwise would have been payable is reduced by the said exemption or reduction.
(4)
Paragraph (3) shall not apply in relation to income derived in any year of income after the year of income that ends on 30 June 1989 or on any later date that may be agreed by the Contracting States in letters exchanged for this purpose.
(5)
(a) Subject to the provisions of the law of Malta from time to time in force which relate to the allowance of a credit against Malta tax of tax paid in a country outside Malta (which shall not affect the general principle hereof), Australian tax paid under the law of Australia and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Malta from sources in Australia (not including, in the case of a dividend, tax paid in respect of the profits out of which the dividend is paid) shall be allowed as a credit against Malta tax payable in respect of that income.
(b) Where a company which is a resident of Australia pays a dividend to a company which is a resident of Malta and which controls directly or indirectly at least 10 per cent of the voting power in the first-mentioned company, the credit shall take into account (in addition to any Australian tax for which credit may be allowed under subparagraph (a)) the Australian tax payable by that first-mentioned company in respect of the profits out of which such dividend is paid.
(6)
Where under this Agreement income is to be relieved from tax in one of the Contracting States and, under the law in force in the other Contracting State, a person, in respect of the said income, is subject to tax by reference to the amount thereof which is remitted to or received in that other State and not by reference to the full amount thereof, then the relief to be allowed under this Agreement in the first-mentioned State shall apply only to so much of the income as is remitted to or received in the other State.
CHAPTER V SPECIAL PROVISIONS
ARTICLE 24 Mutual Agreement Procedure
(1)
Where a resident of one of the Contracting States considers that the actions of the competent authority of one or both of the Contracting States result or will result for him in taxation not in accordance with this Agreement, he may, notwithstanding the remedies provided by the national laws of those States, present his case to the competent authority of the Contracting State of which he is a resident. The case must be presented within three years from the first notification of the action giving rise to taxation not in accordance with this Agreement.
(2)
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement. Any solution so reached shall be implemented notwithstanding any time limits in the national laws of the Contracting States.
(3)
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the interpretation or application of this Agreement.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 25 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the domestic laws of the Contracting States concerning the taxes to which this Agreement applies insofar as the taxation thereunder is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
(2)
In no case shall the provisions of paragraph (1) be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other ContractingState;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 26 Diplomatic and Consular Officials
(1)
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special international agreements.
(2)
Notwithstanding Article 4, an individual who is a member of a diplomatic mission, consular post or permanent mission of one of the Contracting States which is situated in the other Contracting State or in a third State shall be deemed for the purposes of this Agreement to be a resident of the sending State if he is liable in the sending State to the same obligations in relation to tax on his total income as are residents of that sending State.
(3)
This Agreement shall not apply to International Organizations, to organs or officials thereof or to persons who are members of a diplomatic mission, consular post or permanent mission of a third State, being present in a Contracting State and who are not liable in either Contracting State to the same obligations in relation to tax on their total income as are residents thereof.
CHAPTER VI FINAL PROVISIONS
ARTICLE 27 Entry into Force
This Agreement shall enter into force on the date on which the Contracting States exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in Malta, as the case may be, and thereupon this Agreement shall have effect:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the Agreement enters into force;
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(b) in Malta:
in relation to taxes which are levied for the year of assessment beginning on 1 January in the second calendar year following that in which the Agreement enters into force and for any subsequent year of assessment. ARTICLE 28 Termination
This Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective.
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in Malta:
in relation to taxes which are levied for the year of assessment beginning on 1 January in the second calendar year following that in which the notice of termination is given and for subsequent years of assessment.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.
DONE in duplicate at Malta this ninth day of May One thousand nine hundred and eighty-four in the English language.
N. ROSS-SMITH
FOR AUSTRALIAALEX SCEBERRAS TRIGONA
FOR MALTA
Sch 24 added by No 125 of 1984. The Maltese agreement entered into force on 20 May 1985.
(Repealed by No 45 of 2011)
History
Sch 25 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the 2006 Finnish Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 25 formerly read:
SCHEDULE 25 - 2006 Finnish Agreement
Note: See section 3.
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF FINLAND FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAXES ON INCOME AND THE PREVENTION OF FISCAL EVASION
CHAPTER I - SCOPE OF THE AGREEMENT
ARTICLE 1 Persons Covered
This Agreement shall apply to persons who are residents of one or both of the Contracting States. ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Agreement shall apply are:
(a) in the case of Australia:
the income tax, including the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of Australia.
(b) in the case of Finland:
(i) the state income taxes;
(ii) the corporate income tax;
(iii) the communal tax;
(iv) the church tax;
(v) the tax withheld at source from interest; and
(vi) the tax withheld at source from non-residents' income.
(2)
The Agreement shall apply also to any identical or substantially similar taxes that are imposed under the federal law of Australia or the law of Finland after the date of signature of the Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any significant changes that have been made in the law of their respective States relating to the taxes to which the Agreement applies within a reasonable period of time after those changes.
(3)
For the purposes of Article 23, the taxes to which this Agreement shall apply are taxes of every kind and description imposed on behalf of the Contracting States, or their political subdivisions or local authorities.
(4)
For the purposes of Articles 25 and 26, the taxes to which this Agreement shall apply are:
(a) in the case of Australia, taxes of every kind and description imposed under the federal tax laws administered by the Commissioner of Taxation; and
(b) in the case of Finland, taxes of every kind and description.
CHAPTER II - DEFINITIONS
ARTICLE 3 General 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; andand 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 seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "Finland" means the Republic of Finland and, when used in a geographical sense, means the territory of the Republic of Finland, and any area adjacent to the territorial waters of the Republic of Finland within which, under the laws of Finland and in accordance with international law, the rights of Finland with respect to the exploration for and exploitation of the natural resources of the sea bed and its subsoil and of the superjacent waters may be exercised;
(c) the term "person" includes an individual, a company and any other body of persons;
(d) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(e) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;
(f) the term "tax" means Australian tax or Finnish tax as the context requires, but does not include any penalty or interest imposed under the law of either Contracting State relating to its tax;
(g) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(h) the term "Finnish tax" means tax imposed by Finland or its local authorities, being tax to which this Agreement applies by virtue of Article 2;
(i) 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 Finland, the Ministry of Finance or a representative authorised by the Ministry of Finance;
(j) the term "business" includes the performance of professional services and of other activities of an independent character;
(k) the term "enterprise" applies to the carrying on of any business;
(l) the term "international traffic" means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State;
(m) the term "national", in relation to a Contracting State, means:
(i) any individual possessing the nationality or citizenship of that Contracting State; and
(ii) any company deriving its status as such from the laws in force in that Contracting State;
(n) the term "recognised stock exchange" means:
(i) the Australian Stock Exchange and any other Australian stock exchange recognised as such under Australian law;
(ii) the Helsinki Stock Exchange and any other Finnish stock exchange recognised as such under Finnish law; and
(iii) any other stock exchange agreed upon by the competent authorities.
(2)
As regards the application of the Agreement at any time by a Contracting State, 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 State concerning the taxes to which the Agreement applies, any meaning under the applicable tax law of that State prevailing over a meaning given to the term under other law of that State.
ARTICLE 4 Residence
(1)
For the purposes of this Agreement, the term "resident of a Contracting State" 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 Finland, a person who is liable under the laws of Finland to tax therein by reason of the person's domicile, residence, place of management, place of incorporation (registration) or any other criterion of a similar nature.The Government of a Contracting State or a political subdivision, local authority or statutory authority of that State is also a resident of that State for the purposes of the Agreement.
(2)
A person is not a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
(3)
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the person's status shall be determined as follows:
(a) the individual shall be deemed to be a resident only of the State in which a permanent home is available to that individual; but if a permanent home is available in both States, or in neither of them, that individual shall be deemed to be a resident only of the State with which the individual's personal and economic relations are closer (centre of vital interests);
(b) if the State in which the centre of vital interests is situated cannot be determined, the individual shall be deemed to be a resident only of the State of which that individual is a national;
(c) if the individual is a national of both States, or of neither of them, the competent authorities of the Contracting States shall endeavour to resolve the question by mutual agreement.
(4)
Where an item of income, profits or gains derived by an individual is exempt from tax in a Contracting State by reason only of the status of that individual as a temporary resident under the applicable tax laws of that State, no relief shall be available under this Agreement in the other Contracting State in respect of that item of income, profits or gains.
(5)
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident only of the State in which it is incorporated (registered).
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" includes especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place relating to the exploration for or exploitation of natural resources; and
(g) an agricultural, pastoral or forestry property situated in Australia.
(3)
A building site or construction or installation project constitutes a permanent establishment only if it lasts more than 6 months.
(4)
Notwithstanding the provisions of paragraphs 1, 2 and 3, where an enterprise of a Contracting State:
(a) carries on supervisory or consultancy activities in the other State for a period or periods exceeding in the aggregate 183 days in any 12 month period in connection with a building site or construction or installation project which is being undertaken in that other State;
(b) carries on activities (including the operation of substantial equipment) in the other State in the exploration for or exploitation of natural resources situated in that other State for a period or periods exceeding in the aggregate 90 days in any 12 month period; or
(c) operates substantial equipment in the other State (other than as provided in subparagraph (b)) for a period or periods exceeding in the aggregate 183 days in any 12-month period,such activities shall be deemed to be performed through a permanent establishment that the enterprise has in that other State, unless the activities are limited to those mentioned in paragraph 6 and are, in relation to the enterprise, of a preparatory or auxiliary character.
(5)
(a) The duration of activities under paragraphs 3 and 4 will be determined by aggregating the periods during which activities are carried on in a Contracting State by associated enterprises provided that the activities of the enterprise in that State are connected with the activities carried on in that State by its associate.
(b) The period during which two or more associated enterprises are carrying on concurrent activities will be counted only once for the purpose of determining the duration of activities.
(c) Under this Article, an enterprise shall be deemed to be associated with another enterprise if:
(i) one is controlled directly or indirectly by the other; or
(ii) both are controlled directly or indirectly by the same person or persons.
(6)
Notwithstanding the preceding provisions of this Article, the term "permanent establishment" shall be deemed not to include:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character;
(f) the maintenance of a fixed place of business solely for any combination of activities mentioned in sub-paragraphs a) to e) of this paragraph,provided that such activities are, in relation to the enterprise, of a preparatory or auxiliary character.
(7)
Notwithstanding the provisions of paragraphs 1 and 2, where a person - other than an agent of an independent status to whom paragraph 8 applies - is acting on behalf of an enterprise and:
(a) has, and habitually exercises, in a Contracting State an authority to substantially negotiate or conclude contracts on behalf of the enterprise; or
(b) manufactures or processes in a Contracting State for the enterprise goods or merchandise belonging to the enterprise,that enterprise shall be deemed to have a permanent establishment in that State in respect of any activities which that person undertakes for that enterprise, unless the activities of such person are limited to those mentioned in paragraph 6 and are, in relation to the enterprise, of a preparatory or auxiliary character.
(8)
An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a person who is a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of the person's business as such a broker or agent.
(9)
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
(10)
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph 7 of Article 11 and paragraph 5 of Article 12 whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of a Contracting State, has a permanent establishment in a Contracting State.
CHAPTER III - TAXATION OF INCOME
ARTICLE 6 Income from Real Property
(1)
Income derived by a resident of a Contracting State from real property, including income from an agricultural, pastoral or forestry property situated in Finland, may be taxed in the Contracting State in which thereal 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 law of Australia, and includes:
(i) a lease of land and any other interest in or over land, whether improved or not, including a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine those deposits or resources; and
(ii) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources; and
(b) in the case of Finland, means such property which, according to the laws of Finland, is immovable property and shall in any case include buildings, property accessory to immovable property, livestock and equipment used in agriculture and forestry, rights to which the provisions of general law respecting landed property apply, usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources.Ships and aircraft shall not be regarded as real property.
(3)
Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
(4)
The provisions of paragraph 1 shall apply to income derived from the direct use, letting or use in any other form of real property.
(5)
Where the ownership of shares or other rights in a company, trust or comparable institution entitle a person to the enjoyment of real property held by or on behalf of that company, trust or comparable institution, income derived from the direct use, letting or use in any other form of such right to enjoyment may be taxed in the Contracting State in which the real property is situated.
(6)
The provisions of paragraphs 1, 3 and 4 shall also apply to income from real property of an enterprise.
(7)
The provisions of paragraph 5 shall also apply to income of an enterprise derived from the direct use, letting or use in any other form of a right of enjoyment referred to in that paragraph.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In determining the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
(6)
Where profits include items of income or gains which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
(7)
Nothing in this Article shall affect the application of any law of a Contracting State relating to tax imposed on profits from insurance with non-residents provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(8)
Where:
(a) a resident of a Contracting State is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated therein and that share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Ships and Aircraft
(1)
Profits of an enterprise of a Contracting State derived from the operation of ships or aircraft in international traffic shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph 1, profits of an enterprise of a Contracting State derived from the operation of ships or aircraft may be taxed in the other Contracting State to the extent that they are profits derived directly or indirectly from ship or aircraft operations confined solely to places in that other State.
(3)
The profits to which the provisions of paragraphs 1 and 2 apply include profits from the operation of ships or aircraft derived through participation in a pool service or other profit sharing arrangement.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise which are shipped in a Contracting State and are discharged at a place in that State shall be treated as profits from ship or aircraft operations confined solely to places in that State.
ARTICLE 9 Associated Enterprises
(1)
Where:
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the profits accruing to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
(3)
Where profits on which an enterprise of a Contracting State has been charged to tax in that State are also included, by virtue of the provisions of paragraph 1 or 2, in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned State shall make an appropriate adjustment to the amount of tax charged therein on those profits, where that first-mentioned State considers the adjustment justified. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of a Contracting State for the purposes of its tax, being dividends beneficially owned by a resident of the other Contracting State, may be taxed in that other State.
(2)
However, those dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed:
(a) 5 per cent of the gross amount of the dividends if the beneficial owner of those dividends is a company which holds directly at least 10 per cent of the voting power in the company paying the dividends;
(b) 15 per cent of the gross amount of the dividends in all other cases,provided that if the relevant law in either Contracting State at the date of signature of this Agreement is varied otherwise than in minor respects so as not to affect its general character, the Contracting States shall consult each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(3)
Notwithstanding the provisions of paragraph 2 of this Article, dividends shall not be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax if the beneficial owner of the dividends is a company that is a resident of the other Contracting State that has owned shares representing 80 per cent or more of the voting power of the company paying the dividends for a 12 month period ending on the date the dividend is declared and the company that is the beneficial owner of the dividends:
(a) has its principal class of shares listed on a recognised stock exchange specified in subparagraph (i) or (ii) of subparagraph n) of paragraph 1 of Article 3 and is regularly traded on one or more recognised stock exchanges;
(b) is owned directly or indirectly by one or more companies whose principal class of shares is listed on a recognised stock exchange specified in subparagraph (i) or (ii) of subparagraph n) of paragraph 1 of Article 3 and is regularly traded on one or more recognised stock exchanges;
(c) does not meet the requirements of subparagraphs a) or b) of this paragraph but the competent authority of the first-mentioned Contracting State determines, in accordancewith the law of that State, that the establishment, acquisition or maintenance of the company that is the beneficial owner of the dividends and the conduct of its operations did not have as one of its principal purposes the obtaining of benefits under the Agreement. The competent authority of the first-mentioned Contracting State shall consult the competent authority of the other Contracting State before refusing to grant benefits of the Agreement under this subparagraph.
(4)
The term "dividends" as used in this Article means income from shares or other rights, not being debt-claims, participating in profits, as well as other amounts which are subjected to the same taxation treatment as income from shares by the law of the State of which the company making the distribution is a resident for the purposes of its tax.
(5)
The provisions of paragraphs 1, 2 and 3 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident through a permanent establishment situated therein and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
(6)
Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company - being dividends beneficially owned by a person who is not a resident of the other Contracting State - except insofar as the holding in respect of which such dividends are paid is effectively connected with a permanent establishment situated in that other State, nor subject the company's undistributed profits to a tax on the company's undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State. This paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Finland for the purposes of Finnish tax.
(7)
No relief shall be available under this Article if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of the shares or other rights in respect of which the dividend is paid to take advantage of this Article by means of that creation or assignment.
ARTICLE 11 Interest
(1)
Interest arising in a Contracting State and beneficially owned by a resident of the other Contracting State may be taxed in that other State.
(2)
However, such interest may also be taxed in the Contracting State in which it arises and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
Notwithstanding paragraph 2, interest arising in a Contracting State and beneficially owned by a resident of the other Contracting State shall be taxable only in that other Contracting State if:
(a) the interest is derived by a Contracting State or by a political or administrative sub-division or a local authority thereof, or by any other body exercising governmental functions in a Contracting State, or by a bank performing central banking functions in a Contracting State; or
(b) the interest is derived by a financial institution which is unrelated to and dealing wholly independently with the payer. For the purposes of this Article, the term "financial institution" means a bank or other enterprise substantially deriving its profits by raising debt finance in the financial markets or by taking deposits at interest and using those funds in carrying on a business of providing finance.
(4)
Notwithstanding paragraph 3, interest referred to in subparagraph b) of that paragraph may be taxed in the State in which it arises at a rate not exceeding 10 per cent of the gross amount of the interest if the interest is paid as part of an arrangement involving back-to-back loans or other arrangement that is economically equivalent and intended to have a similar effect to back-to-back loans.
(5)
The term "interest" in this Article includes interest from government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, interest from any other form of indebtedness, as well as income which is subjected to the same taxation treatment as income from money lent by the law of the Contracting State in which the income arises.
(6)
The provisions of paragraphs 1 and 2, subparagraph b) of paragraph 3 and paragraph 4 of this Article shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises through a permanent establishment situated therein and the indebtedness in respect of which the interest is paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
(7)
Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment, then such interest shall be deemed to arise in the State in which the permanent establishment is situated.
(8)
Where, by reason of a special relationship between the payer and the beneficial owner of the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the payments shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Agreement.
(9)
No relief shall be available under this Article if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of the indebtedness in respect of which the interest is paid to take advantage of this Article by means of that creation or assignment.
ARTICLE 12 Royalties
(1)
Royalties arising in a Contracting State and beneficially owned by a resident of the other Contracting State may be taxed in that other State.
(2)
However, those royalties may also be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 5 per cent of the gross amount of the royalties.
(3)
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 supply of scientific, technical, industrial or commercial knowledge or information;
(c) the supply of any assistance that is 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) or any such knowledge or information as is mentioned in subparagraph b);
(d) the use of, or the right to use:
(i) motion picture films;
(ii) films or audio or video tapes or disks, or any other means of image or sound reproduction or transmission for use in connection with television, radio or other broadcasting;
(e) the use of, or the right to use, some or all of the part of the radiofrequency spectrum specified in a spectrum licence, being spectrum of a Contracting State where the payment or credit arises; or
(f) total or partial forbearance in respect of the use or supply of any property or right referred to in this paragraph.
(4)
The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise through a permanent establishment situated therein and the right or property in respect of which the royalties are paid or credited is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment, then such royalties shall be deemed to arise in the State in which the permanent establishment is situated.
(6)
Where, by reason of a special relationship between the payer and the beneficial owner of the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the amount of the payments or credits shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Agreement.
(7)
No relief shall be available under this Article if it was the main purpose or one of the main purposes of any person concerned with the creation or assignment of the rights in respect of which the royalties are paid or credited to take advantage of this Article by means of that creation or assignment.
ARTICLE 13 Alienation of Property
(1)
Income, profits or gains derived by a resident of a Contracting State from the alienation of real property referred to in paragraph 2 of Article 6 and situated in the other Contracting State may be taxed in that other State.
(2)
Income, profits or gains from the alienation of property, other than real property, that forms part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise), may be taxed in that other State.
(3)
Income, profits or gains of an enterprise of a Contracting State from the alienation of ships or aircraft operated by that enterprise in international traffic, or of property (other than real property) pertaining to the operation of such ships or aircraft, shall be taxable only in that State.
(4)
Income, profits or gains derived by a resident of a Contracting State from the alienation of any shares or comparable interests in an entity, where more than half of the value of the assets of that entity, whether they are held directly or indirectly, is attributable to real property situated in the other State, may be taxed in that other State.
(5)
Gains of a capital nature from the alienation of any property, other than that referred to in the preceding paragraphs, shall be taxable only in the Contracting State of which the alienator is a resident.
ARTICLE 14 Income from Employment
(1)
Subject to the provisions of Articles 15, 17 and 18, salaries, wages and other similar remuneration derived by a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived therefrom may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph 1, remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
(a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any 12 month period commencing or ending in the year of income of that other State, and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of the other State, and
(c) the remuneration is not borne by a permanent establishment which the employer has in the other State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic may be taxed in the Contracting State of which the enterprise operating the ship or aircraft is a resident.
ARTICLE 15 Directors' Fees
Directors' fees and other similar payments derived by a resident of a Contracting State in that person's capacity as a member of the board of directors or any other similar body of a company which is a resident of the other Contracting State may be taxed in that other State. ARTICLE 16 Entertainers and Sportspersons
(1)
Notwithstanding the provisions of Articles 7 and 14, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson, from that person's personal activities as such exercised in the other Contracting State, may be taxed in that other State.
(2)
Where income in respect of personal activities exercised by an entertainer or a sportsperson in that person's capacity as such accrues not to that person but to another person, that income may, notwithstanding the provisions of Articles 7 and 14, be taxed in the Contracting State in which the activities of the entertainer or sportsperson are exercised.
ARTICLE 17 Pensions and Annuities
(1)
Subject to the provisions of paragraph 3, any pension or annuity paid to a resident of a Contracting State shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
(3)
Pensions paid by a Contracting State or a political subdivision, local authority or statutory authority thereof to any individual in respect of services rendered to that State or subdivision or authority and pensions paid and other payments made under the social security legislation of a Contracting State may be taxed in that State. The provisions of this paragraph shall apply only to individuals who are citizens or nationals of the Contracting State from which the payments are made.
(4)
Any alimony or other maintenance payment arising in a Contracting State and paid to a resident of the other Contracting State shall be taxable only in the first-mentioned State.
ARTICLE 18 Government Service
(1)
(a) Salaries, wages and other similar remuneration, other than a pension or annuity, paid by a Contracting State or a political subdivision, local authority or statutory authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.
(b) However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that State and the individual is a resident of that State who:
(i) is a national of that State; or
(ii) did not become a resident of that State solely for the purpose of rendering the services.
(2)
The provisions of Articles 14, 15 and 16 shall apply to salaries, wages and other similar remuneration in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision, local authority or statutory authority thereof.
ARTICLE 19 Students
Payments which a student or business apprentice who is or was immediately before visiting a Contracting State a resident of the other Contracting State and who is temporarily present in the first-mentioned State solely for the purpose of their education or training receives for the purpose of their maintenance, education or training shall not be taxed in that State, provided that such payments arise from sources outside that State. ARTICLE 20 Other Income
(1)
Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that State.
(2)
The provisions of paragraph 1 shall not apply to income, other than income from real property as defined in paragraph 2 of Article 6, derived by a resident of a Contracting State who carries on business in the other Contracting State through a permanent establishment situated therein and the right or property in respect of which the income is paid is effectively connected with such permanent establishment. In such case the provisions of Article 7 shall apply.
(3)
Notwithstanding the provisions of paragraphs 1 and 2, items of income of a resident of a Contracting State not dealt with in the foregoing Articles of the Agreement from sources in the other Contracting State may also be taxed in the other Contracting State.
ARTICLE 21 Source of Income
(1)
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8 or 10 to 18, may be taxed in the other Contracting State shall for the purposes of the law of that other Contracting State relating to its tax be deemed to arise from sources in that other Contracting State.
(2)
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8 or 10 to 18, may be taxed in the other Contracting State shall for the purposes of Article 22 and of the law of the first-mentioned Contracting State relating to its tax be deemed to arise from sources in the other Contracting State.
CHAPTER IV - RELIEF FROM DOUBLE TAXATION
ARTICLE 22 Relief from Double Taxation
(1)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article), Finnish tax paid under the law of Finland and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Finland shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
Subject to the provisions of Finnish law regarding the elimination of international double taxation (which shall not affect the general principle hereof), double taxation shall be eliminated in Finland as follows:
(a) where a resident of Finland derives income which, in accordance with the provisions of this Agreement, may be taxed in Australia, Finland shall, subject to the provisions of subparagraph b), allow as a deduction from the Finnish tax of that person, an amount equal to the Australian tax paid under Australian law and in accordance with the Agreement, as computed by reference to the same income by reference to which the Finnish tax is computed;
(b) dividends paid by a company being a resident of Australia to a company which is a resident of Finland and which controls directly at least 10 per cent of the voting power in the company paying the dividends shall be exempt from Finnish tax;
(c) where in accordance with any provision of this Agreement any income derived by a resident of Finland is exempt from tax in Finland, Finland may nevertheless, in calculating the amount of tax on any other income of such resident, take into account the exempted income.
CHAPTER V - SPECIAL PROVISIONS
Article 23 Non-Discrimination
(1)
Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, in particular with respect to residence, are or may be subjected. This provision shall, notwithstanding the provisions of Article 1, also apply to persons who are not residents of one or both of the Contracting States.
(2)
The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities in similar circumstances. This provision shall not be construed as obliging a Contracting State to grant to individuals who are residents of the other Contracting State any of the personal allowances, reliefs and reductions for tax purposes which are granted to its own residents.
(3)
Except where the provisions of paragraph 1 of Article 9, paragraph 8 of Article 11, or paragraph 6 of Article 12, apply, interest, royalties and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the first-mentioned State.
(4)
Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of the first-mentioned State in similar circumstances are or may be subjected.
(5)
This Article shall not apply to any provision of the laws of a Contracting State which:
(a) is designed to prevent the avoidance or evasion of taxes;
(b) does not permit the deferral of tax arising on the transfer of an asset where the subsequent transfer of the asset by the transferee would be beyond the taxing jurisdiction of the Contracting State under its laws;
(c) provides for consolidation of group entities for treatment as a single entity for tax purposes provided that a company, being a resident of that State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, may access such consolidation treatment on the same terms and conditions as other companies that are residents of the first-mentioned State;
(d) does not allow tax rebates or credits in relation to dividends paid by a company that is a resident of that State for purposes of its tax;
(e) provides deductions to eligible taxpayers for expenditure on research and development; or
(f) is otherwise agreed to be unaffected by this Article in an Exchange of Notes between the Contracting States.
(6)
In this Article, provisions of the laws of a Contracting State which are designed to prevent avoidance or evasion of taxes include:
(a) measures designed to address thin capitalisation, dividend stripping and transfer pricing;
(b) controlled foreign company, transferor trusts and foreign investment fund rules; and
(c) measures designed to ensure that taxes can be effectively collected and recovered, including conservancy measures.
(7)
The provisions of this Article shall apply to the taxes which are referred to in paragraph 3 of Article 2 of this Agreement.
ARTICLE 24 Mutual Agreement Procedure
(1)
Where a person considers that the actions of one or both of the Contracting States result or will result for the person in taxation not in accordance with this Agreement, the person may, irrespective of the remedies provided by the domestic law of those States concerning taxes to which the Agreement applies, present a case to the competent authority of the Contracting State of which the person is a resident or, if the case comes under paragraph 1 of Article 23, to that of the Contracting State of which the person is a national. The case must be presented within 3 years from the first notification of the action resulting in taxation not in accordance with the Agreement.
(2)
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with the Agreement. Any agreement reached shall be implemented notwithstanding any time limits in the domestic law of the Contracting States.
(3)
The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of the Agreement. They may also consult together for the elimination of double taxation in cases not provided for in the Agreement.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of reaching an agreement in the sense of the preceding paragraphs.
(5)
For the purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of this Agreement may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph 3 of this Article or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States.
ARTICLE 25 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is foreseeably relevant for carrying out the provisions of this Agreement or to the administration or enforcement of the domestic law concerning taxes referred to in paragraph 4 of Article 2, insofar as the taxation thereunder is not contrary to the Agreement. The exchange of information is not restricted by Article 1.
(2)
Any information received under paragraph 1 by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic law of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to, the taxes referred to in paragraph 1, or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
(3)
In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the law and administrative practice of that or of the other Contracting State;
(b) to supply information which is not obtainable by the competent authority under the law or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public).
(4)
If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other State may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting State to decline to supply information solely because it has no domestic interest in such information.
(5)
In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person.
ARTICLE 26 Assistance in the Collection of Taxes
(1)
The Contracting States shall lendassistance to each other in the collection of revenue claims. This assistance is not restricted by Article 1. The competent authorities of the Contracting States may by mutual agreement settle the mode of application of this Article.
(2)
The term "revenue claim" as used in this Article means an amount owed in respect of taxes referred to in paragraph 4 of Article 2, insofar as the taxation thereunder is not contrary to this Agreement or any other instrument to which the Contracting States are parties, as well as interest, administrative penalties and costs of collection or conservancy related to such amount.
(3)
When a revenue claim of a Contracting State is enforceable under the laws of that State and is owed by a person who, at that time, cannot, under the laws of that State, prevent its collection, that revenue claim shall, at the request of the competent authority of that State, be accepted for purposes of collection by the competent authority of the other Contracting State. That revenue claim shall be collected by that other State in accordance with the provisions of its laws applicable to the enforcement and collection of its own taxes as if the revenue claim were a revenue claim of that other State.
(4)
When a revenue claim of a Contracting State is a claim in respect of which that State may, under its law, take measures of conservancy with a view to ensure its collection, that revenue claim shall, at the request of the competent authority of that State, be accepted for purposes of taking measures of conservancy by the competent authority of the other Contracting State. That other State shall take measures of conservancy in respect of that revenue claim in accordance with the provisions of its laws as if the revenue claim were a revenue claim of that other State even if, at the time when such measures are applied, the revenue claim is not enforceable in the first-mentioned State or is owed by a person who has a right to prevent its collection.
(5)
Notwithstanding the provisions of paragraphs 3 and 4, a revenue claim accepted by a Contracting State for purposes of paragraph 3 or 4 shall not, in that State, be subject to the time limits or accorded any priority applicable to a revenue claim under the laws of that State by reason of its nature as such. In addition, a revenue claim accepted by a Contracting State for the purposes of paragraph 3 or 4 shall not, in that State, have any priority applicable to that revenue claim under the laws of the other Contracting State.
(6)
Proceedings with respect to the existence, validity or the amount of a revenue claim of a Contracting State shall not be brought before the courts or administrative bodies of the other Contracting State.
(7)
Where, at any time after a request has been made by a Contracting State under paragraph 3 or 4 and before the other Contracting State has collected and remitted the relevant revenue claim to the first-mentioned State, the relevant revenue claim ceases to be
(a) in the case of a request under paragraph 3, a revenue claim of the first-mentioned State that is enforceable under the laws of that State and is owed by a person who, at that time, cannot, under the laws of that State, prevent its collection, or
(b) in the case of a request under paragraph 4, a revenue claim of the first-mentioned State in respect of which that State may, under its laws, take measures of conservancy with a view to ensure its collectionthe competent authority of the first-mentioned State shall promptly notify the competent authority of the other State of that fact and, at the option of the other State, the first-mentioned State shall either suspend or withdraw its request.
(8)
In no case shall the provisions of this Article be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;
(b) to carry out measures which would be contrary to public policy (ordre public);
(c) to provide assistance if the other Contracting State has not pursued all reasonable measures of collection or conservancy, as the case may be, available under its laws or administrative practice;
(d) to provide assistance in those cases where the administrative burden for that State is clearly disproportionate to the benefit to be derived by the other Contracting State;
(e) to provide assistance if that State considers that the taxes with respect to which assistance is requested are imposed contrary to generally accepted taxation principles.CCH Note: Article 26 entered into force on 1 September 2009 (Commonwealth of Australia Gazette, No GN 36, 16 September 2009).
ARTICLE 27 Members of Diplomatic Missions and Consular Posts
Nothing in this Agreement shall affect the fiscal privileges of members of diplomatic missions or consular posts under the general rules of international law or under the provisions of special international agreements.CHAPTER VI - FINAL PROVISIONS
ARTICLE 28 Entry into Force
(1)
The Contracting States shall notify each other in writing through the diplomatic channel of the completion of their domestic requirements for the entry into force of this Agreement. The Agreement shall enter into force 30 days after the date of the later of the notifications and its provisions shall have effect:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following the date on which the Agreement enters into force;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any yearof income beginning on or after 1 July in the calendar year next following the date on which the Agreement enters into force;
(b) in Finland:
(i) in respect of taxes withheld at source, on income derived on or after 1 January in the calendar year next following the year in which the Agreement enters into force;
(ii) in respect of other taxes on income for taxes chargeable for any tax year beginning on or after 1 January in the calendar year next following the year in which the Agreement enters into force;
(c) for purposes of Article 25, from the date of entry into force of this Agreement.Notwithstanding the provisions of subparagraphs a) and b), Article 26 shall have effect from the date agreed in an exchange of notes through the diplomatic channel.
CCH Note: Article 26 entered into force on 1 September 2009 (Commonwealth of Australia Gazette, No GN 36, 16 September 2009).
(2)
The Agreement between Finland and Australia for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income, signed at Canberra on 12th September 1984, as modified by the Protocol signed at Canberra on 5th November 1997 (hereinafter referred to as "the 1984 Agreement"), shall cease to have effect with respect to taxes to which this Agreement applies in accordance with the provisions of paragraph 1. The 1984 Agreement shall terminate on the last date on which it has effect in accordance with the foregoing provision of this paragraph.
ARTICLE 29 Termination
This Agreement shall continue in effect indefinitely, but either Contracting State may terminate the Agreement by giving written notice of termination, through the diplomatic channel, to the other State at least 6 months before the end of any calendar year beginning after the expiration of 5 years from the date of its entry into force and, in that event, the Agreement shall cease to be effective:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in Finland:
(i) in respect of taxes withheld at source, on income derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other taxes on income for taxes chargeable for any tax year beginning on or after 1 January in the calendar year next following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, being duly authorised, have signed this Agreement.
DONE in duplicate at Melbourne this twentieth day of November 2006, in the English and Finnish languages, both texts being equally authentic.
PROTOCOL
FOR THE GOVERNMENT OF AUSTRALIA: FOR THE GOVERNMENT OF FINLAND: Hon. Peter Costello
Treasurer
[signatures omitted]Eero Heinäluoma
Minister for Finance
(1)
With reference generally to the application of the Agreement
(a) Nothing in the Agreement shall be construed as restricting, in any manner, the application of any provision of the laws of a Contracting State which is designed to prevent the avoidance or evasion of taxes.
(b) It is understood that nothing in the Agreement prevents the application of the provisions of Article 26 to the exchange of information that existed prior to the entry into force of the Agreement.
(2)
With reference to Articles 4, 17 and 18The term "statutory authority" means any legal entity of a public character created by the laws of a Contracting State in which no person other than the State itself, a political subdivision or a local authority thereof, has an interest, and, in the case of Finland, includes the Bank of Finland, the Helsinki University and the Social Insurance Institution of Finland.
(3)
With reference to paragraph 7 of Article 5The Contracting States note that the term "substantially negotiate" is included at Australia's request to remove any doubt as to the existence of a permanent establishment where contracts that have been negotiated by an agent in one State are formally concluded in the other State by signature in that other State.
IN WITNESSWHEREOF the undersigned, being duly authorised, have signed this Protocol.
DONE in duplicate at Melbourne this twentieth day of November 2006, in the English and Finnish languages, both texts being equally authentic.
FOR THE GOVERNMENT OF AUSTRALIA: FOR THE GOVERNMENT OF FINLAND: Hon. Peter Costello
Treasurer
[signatures omitted]Eero Heinäluoma
Minister for Finance
Sch 25 substituted by No 146 of 2007, s 3 and Sch 1 item 8, effective 24 September 2007. The agreement came into force 10 November 2007 - see Art 28 of the 2006 agreement for rules concerning entry into force. Sch 25 formerly read:
SCHEDULE 25 - Finnish Agreement
Section 3
AGREEMENT BETWEEN AUSTRALIA AND FINLAND FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Agreement shall apply are:
(a) in Australia:
the Australian income tax, including the additional tax upon the undistributed amount of the distributable income of a private company;
(b) in Finland:
(i) the state income taxes;
(ii) the corporate income tax;
(iii) the communal tax,
(iv) the church tax;
(v) the tax withheld at source from interest; and
(vi) the tax withheld at source from non-residents' income.
(2)
This Agreement shall also apply to any identical or substantially similar taxes which are imposed under the law of Australia or the law of Finland after the date of signature of this Agreement in addition to, or in place of, the existing taxes. As soon as possible after the end of each calendar year, the competent authorities of the Contracting States shall notify each other of any significant changes which have been made in their respective laws relating to the taxes to which this Agreement applies.HistoryArt 2 amended by Sch 25A (the second Finnish Protocol).
ARTICLE 3 General Definitions
(1)
For the purposes of this Agreement, unless the context otherwise requires:
(a) the term "Australia" means the Commonwealth of Australia and, when used in a geographical sense, includes:
(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 Coral Sea Islands Territory; and
(vi) any area adjacent to the territorial limits of Australia or of the said Territories in respect of which there is for the time being in force, consistently with international law, a law of Australia or of a State or part of Australia or of a Territory aforesaid dealingwith the exploitation of any of the natural resources of the sea-bed and subsoil of the continental shelf;
(b) the term "Finland" means the Republic of Finland and, when used in a geographical sense, means the territory of the Republic of Finland and any area adjacent to the territorial waters of the Republic of Finland within which, under the laws of Finland and in accordance with international law, the rights of Finland with respect to the exploration and exploitation of the natural resources of the sea-bed and its subsoil may be exercised;
(c) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" mean Australia or Finland, as the context requires;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Finland, as the context requires;
(g) the term "tax" means Australian tax or Finnish tax, as the context requires;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "Finnish tax" means tax imposed by Finland, being tax to which this Agreement applies by virtue of Article 2;
(j) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or his authorized representative, and, in the case of Finland, the Ministry of Finance or its authorized representative.
(2)
For the purposes of this Agreement, the terms "Australian tax" and "Finnish tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes to which this Agreement applies by virtue of Article 2.
(3)
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State relating to the taxes to which this Agreement applies.
ARTICLE 4 Residence
(1)
For the purposes of this Agreement, a person is, subject to paragraph (2), a resident of one of the Contracting States:
(a) in the case of Australia, if the person is a resident of Australia for the purposes of Australian tax; and
(b) in the case of Finland, if the person is liable under the laws of Finland to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature.
(2)
A person is not a resident of a Contracting State for the purposes of this Agreement if he is liable to tax in that State in respect only of income from sources in that State.
(3)
For the purposes of taxation in Finland, an undivided estate of a deceased person shall be deemed to be a person who is a resident of the Contracting State of which the deceased was a resident, at the time of his death, in accordance with the provisions of this Article.
(4)
Where by reason of the preceding provisions of this Article an individual is a resident of both Contracting States, then his status shall be determined in accordance with the following rules:
(a) he shall be deemed to be a resident solely of the Contracting State in which he has a permanent home available to him;
(b) if he has a permanent home available to him in both Contracting States, or if he does not have a permanent home available to him in either of them, he shall be deemed to be a resident solely of the Contracting State with which his personal and economic relations are the closer.
(5)
Where, by reason of any of the preceding provisions of this Article, a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which it is incorporated, created or organized.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Agreement, the term "permanent establishment", in relation to an enterprise, means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property situated in Australia;
(h) a building site or construction, installation or assembly project which exists for more than twelve months.
(3)
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(4)
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if:
(a) it carries on supervisory activities in that State for more than twelve months in connection with a building site, or a construction, installation or assembly project which is being undertaken in that State; or
(b) substantial equipment is being used in that State for more than twelve months by, for or under contract with the enterprise in exploration for, or exploitation of, natural resources, or in activities connected with such exploration or exploitation.
(5)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (6) applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if:
(a) he has, and habitually exercises in that State, an authority to conclude contracts binding the enterprise, unless the activities of that person are limited to those mentioned in paragraph (3) and are such that, if exercised through a fixed place of business, would not make that fixed place of business a permanent establishment under the provisions of that paragraph; or
(b) in so acting, he manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
(6)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of his business as such a broker or agent.
(7)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
(8)
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph (5) of Article 11 and paragraph (5) of Article 12 of this Agreement whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
ARTICLE 6 Income from Real Property
(1)
Income from real property, including income from an agricultural, pastoral or forestry property in Finland, 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 Finland, means such property which, according to the laws of Finland, 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)
A lease of land, any other interest in or over land and any rights or property referred to in any of the subparagraphs of paragraph (2) shall be regarded as situated where the land, mineral deposits, mineral sources, oil or gas wells, quarries, natural resources or property, as the case may be, are situated.
(4)
The provisions of paragraph (1) shall apply to income derived from the direct use, letting or use in any other form of real property.
(5)
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 Finland, the income from the direct use, letting or use in any other form of such right to enjoyment may be taxed in Finland.
(6)
The provisions of paragraphs (1) and (4) shall also apply to income from real property of an enterprise and to income from real property used for the performance of professional services.
(7)
The provisions of paragraph (5) shall also apply to income of an enterprise from a 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 professional services.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph (3), where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
Insofar as it has been customary in one of the Contracting States to determine the profits to be attributed to a permanent establishment on the basis of an apportionment of the total profits of the enterprise to its various parts, nothing in paragraph (2) shall preclude that Contracting State from determining the profits to be taxed by such an apportionment as may be customary. The method of apportionment adopted shall, however, be such that the result shall be in accordance with the principles contained in this Article.
(5)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(6)
For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.
(7)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
(8)
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
(9)
Nothing in this Article shall affect the operation of any law of a Contracting State relating to taxation of profits from insurance with non-residents provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
ARTICLE 8 Shipping and Air Transport
(1)
Profits from the operation of ships or aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1), such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
(3)
The provisions of paragraphs (1) and (2) shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organization or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in one of the Contracting States for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
(5)
The amount which shall be charged to tax in one of the Contracting States under paragraph (2) shall not exceed 5 per cent of the amount paid or payable (net of rebates) in respect of carriage in such operations.
(6)
Paragraph (5) shall not apply to profits from the operation of ships derived by a resident of one of the Contracting States if:
(a) his principal place of business is in the other Contracting State; or
(b) those profits are derived from activities other than the carriage of passengers, cargo or mail.In such cases, the provisions of Article 7 shall apply.
ARTICLE 9 Associated Enterprises
(1)
Where:
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the income to be attributed to an enterprise, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
(3)
Where, according to the provisions of paragraph (1), profits are included by one of the Contracting States in the profits of an enterprise, the other Contracting State shall, on a claim being made by the other enterprise concerned, consistently with its law consider the inclusion so made and the provision of relief to that other enterprise in relation to the taxation of profits which the other State determines to be profits which, but for the particular conditions referred to in paragraph (1), might have been expected to accrue to the first-mentioned enterprise. For the purpose of determining any such relief, due regard shall be had to the other provisions of this Agreement in relation to the nature of the income and the competent authorities of the States shall if necessary consult each other.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, shall be taxable only in that other State.
(2)
Notwithstanding the provisions of paragraph (1), dividends, other than dividends that are paid out of profits that have borne the normal rate of company tax, may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that Contracting State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends. If the relevant existing law in either Contracting State changes after the date of signature of this Agreement, other than in minor respects so as not to affect its general character, the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(3)
For the purposes of paragraph (2), profits have borne the normal rate of company tax:
(a) in Australia, to the extent to which the dividends have been fully "franked" in accordance with its tax; and
(b) in Finland, where they have been subject to the corporate income tax.
(4)
The term "dividends" as used in this Article means income from shares and other income assimilated to income from shares by the taxation law of the Contracting State of which the company making the distribution is a resident for the purposes of its tax.
(5)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In any such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
(6)
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. Provided that this paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Finland for the purposes of Finnish tax.HistoryArt 10 substituted by Sch 25A (the second Finnish Protocol).
ARTICLE 11 Interest
(1)
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
The term "interest" as used in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to income from money lent by the taxation law of the Contracting State in which the income arises.
(4)
The provisions of paragraph (2) shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the indebtedness in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State, a statutory authority of that State or of a political subdivision thereof or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether he is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 12 Royalties
(1)
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
(3)
The term "royalties" as used 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 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);
(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.
(4)
The provisions of paragraph (2) shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the property or right in respect of which the royalties are paid or credited is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State, a statutory authority of that State or of a political subdivision thereof or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether he is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13 Income From Alienation of Property
(1)
Income from the alienation of real property 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, shall have the meaning which it has under the laws of Australia and shall include:
(i) a lease of land or any other direct interest in or over land;
(ii) rights to exploit, or to explore for, natural resources; and
(iii) shares or comparable interests in a company, the assets of which consist wholly or principally of direct interests in or over land in one of the Contracting States or of rights to exploit, or to explore for, natural resources in one of the Contracting States; and
(b) in the case of Finland, shall have the same meaning that it has for the purposes of Article 6 and shall include shares or other corporate rights in a company which entitle the owner of those shares or other corporate rights to the enjoyment of real property held by the company and situated in Finland.
(3)
Real property shall be deemed to be situated:
(a) where it consists of direct interests in or over land - in the Contracting State in which the land is situated;
(b) where it consists of rights to exploit, or to explore for, natural resources - in the Contracting State in which the natural resources are situated or the exploration may take place;
(c) where it consists of shares or comparable interests in a company, the assets of which consist wholly or principally of direct interests in or over land in one of the Contracting States or of rights to exploit, or to explore for, natural resources in one of the Contracting States - in the Contracting State in which the assets or the principal assets of the company are situated; and
(d) where it consists of any of the rights or property referred to in subparagraph (2)(b) of Article 6 or shares or other corporate rights referred to in paragraph (5) of Article 6 - in Finland.
ARTICLE 14 Independent Personal Services
(1)
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base.
(2)
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the year of income of that other State;
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State;
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State; and
(d) the remuneration is, or upon the application of this Article will be, subject to tax in the first-mentioned State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that State.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a resident of one of the Contracting States in his capacity as a member of the board of directors or of a similar organ of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
(2)
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
ARTICLE 18 Pensions and Annuities
(1)
Subject to the provisions of paragraph (3), any pension or annuity paid to a resident of one of the Contracting States shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
(3)
Pensions paid by one of the Contracting States, a political subdivision or a statutory authority of that State or a political subdivision thereof or a local authority of that State to any individual in respect of services rendered to that State, political subdivision, statutory authority or local authority, as the case may be, and pensions paid and other payments made under the social security legislation of one of the Contracting States may be taxed in that State. The provisions of this paragraph shall apply only to individuals who are citizens or nationals of the Contracting State from which the payments are made.
(4)
Any alimony or other maintenance payment arising in one of the Contracting States and paid to a resident of the other Contracting State shall be taxable only in the first-mentioned State.
ARTICLE 19 Government Service
(1)
Remuneration, other than a pension or annuity, paid by one of the Contracting States, a political subdivision or local authority of that State or a statutory authority of that State or a political subdivision thereof to any individual in respect of services rendered to that State, political subdivision, local authority or statutory authority, as the case may be, shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen or national of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
(2)
The provisions of paragraph (1) shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by one of the Contracting States, a political subdivision or local authority of that State or by a statutory authority of that State or of a political subdivision thereof. In such a case, the provisions of Article 15 or Article 16, as the case may be, shall apply.
ARTICLE 20 Students
Where a student, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of his education, receives payments from sources outside that other State for the purpose of his maintenance or education, those payments shall be exempt from tax in that other State.ARTICLE 21 Income Not Expressly Mentioned
(1)
Items of income of a resident of one of the Contracting States which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable only in that State.
(2)
However, any such income derived by a resident of one of the Contracting States from sources in the other Contracting State may also be taxed in that other State.
(3)
The provisions of paragraph (1) shall not apply to income derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
ARTICLE 22 Source of Income
(1)
Income derived by a resident of Finland which, under any one or more of Articles 6 to 8, Articles 10 to 19 and Article 21, may be taxed in Australia shall for the purposes of the income tax law of Australia be deemed to be income from sources in Australia.
(2)
Income derived by a resident of Australia which, under any one or more of Articles 6 to 8, Articles 10 to 19 and Article 21, may be taxed in Finland shall for the purposes of paragraph (1) of Article 23 and of the income tax law of Australia be deemed to be income from sources in Finland.
ARTICLE 23 Methods of Elimination of Double Taxation
(1)
Subject to the provisions of the law of Australia fromtime to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Finnish tax, other than that paid by reason of the provisions of subparagraph (c) of paragraph (2) of this Article, paid under the law of Finland and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Finland (not including, in the case of a dividend, tax paid in respect of the profits out of which the dividend is paid) shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
Subject to the provisions of Finnish law regarding the elimination of international double taxation (which shall not affect the general principle hereof), double taxation shall be eliminated in Finland as follows:
(a) where a resident of Finland derives income which, in accordance with the provisions of this Agreement, may be taxed in Australia, Finland shall, subject to the provisions of sub-paragraph (b), allow as a deduction from the Finnish tax of that person, an amount equal to the Australian tax paid under Australian law and in accordance with the Agreement, as computed by reference to the same income by reference to which the Finnish tax is computed;
(b) dividends paid by a company being a resident of Australia to a company which is a resident of Finland and which controls directly at least 10 per cent of the voting power in the company paying the dividends shall be exempt from Finnish tax;
(c) notwithstanding any other provision of this Agreement, an individual who is a resident of Australia and, under Finnish taxation law with respect to Finnish tax, also is regarded as a resident of Finland may be taxed in Finland. However, Finland shall allow any Australian tax paid on the income as a deduction from Finnish tax in accordance with the provisions of subparagraph (a). The provisions of this subparagraph shall apply only to nationals of Finland;
(d) where in accordance with any provision of this Agreement any income derived by a resident of Finland is exempt from tax in Finland, Finland may nevertheless, in calculating the amount of tax on any other income of such resident, take into account the exempted income.HistoryArt 23 amended by Sch 25A (the second Finnish Protocol).
ARTICLE 24 Mutual Agreement Procedure
(1)
Where a resident of one of the Contracting States considers that the actions of the competent authority of one or both of the Contracting States result or will result for him in taxation not in accordance with this Agreement, he may, notwithstanding the remedies provided by the national laws of those States, present his case to the competent authority of the Contracting State of which he is a resident. The case must be presented within three years from the first notification of the action giving rise to taxation not in accordance with this Agreement.
(2)
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the national laws of the Contracting States.
(3)
The competent authorities of the Contracting States shall jointly endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of this Agreement.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 25 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out of this Agreement or of the domestic laws of the Contracting States concerning the taxes to which this Agreement applies insofar as the taxation thereunder is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
(2)
In no case shall the provisions of paragraph (1) be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy (ordre public).
ARTICLE 26 Diplomatic and Consular Officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special international agreements.ARTICLE 27 Entry into Force
This Agreement shall enter into force on the thirty-first day after the date on which the Contracting States exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in Finland, as the case may be, and thereupon this Agreement shall have effect:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the Agreement enters into force;
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(b) in Finland:
(i) in respect of taxes withheld at source, to income derived on or after 1 January in the calendar year next following the year in which the Agreement enters into force;
(ii) in respect of other Finnish tax on income, to taxes chargeable for any taxable year beginning on or after 1 January in the calendar year next following the year in which the Agreement enters into force.ARTICLE 28 Termination
This Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident in relation to income derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in Finland:
(i) in respect of taxes withheld at source, to income derived on or after 1 January in the calendar year next following the year in which the notice is given;
(ii) in respect of other Finnish tax on income, to taxes chargeable for any taxable year beginning on or after 1 January in the calendar year next following the year in which the notice is given.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.
DONE at Canberra this twelfth day of September One thousand nine hundred and eighty-four in duplicate in the English and Finnish languages, both texts being equally authentic.
PROTOCOL
PAUL KEATING
FOR THE GOVERNMENT OF AUSTRALIAJERMU LAINE
FOR THE GOVERNMENT OF FINLAND
If, in an agreement for the avoidance of double taxation that is made after 12 September 1984 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) (Omitted by Sch 25A)
(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 (2) of Article 11; 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 (2) of Article 12; or
(b) there is included a Non-Discrimination Article,the Government of Australia shall immediately inform the Government of Finland in writing through the diplomatic channel and shall enter into negotiations with the Government of Finland, in the case of paragraph (a), to review the provisions specified in that paragraph in order to provide the same treatment for Finland as that provided for the third State and, in the case of paragraph (b), in order to provide the same treatment for Finland as that provided for the third State.
IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Protocol.
DONE at Canberra this twelfth day of September One thousand nine hundred and eighty-four in duplicate in the English and Finnish languages, both texts being equally authentic.
PAUL KEATING
FOR THE GOVERNMENT OF AUSTRALIAJERMU LAINE
FOR THE GOVERNMENT OF FINLAND
Protocol amended by Sch 25A (the second Finnish Protocol).
Sch 25 added by No 168 of 1985. The Finnish agreement entered into force on 28 March 1986.
(Repealed by No 146 of 2007)
History
Sch 25A repealed by No 146 of 2007, s 3 and Sch 1 item 8, effective 24 September 2007. The new 2006 Finnish agreement came into force 10 November 2007 - see Art 28 of the 2006 agreement for rules concerning entry into force. Sch 25A formerly read:
SCHEDULE 25A - Second Finnish Protocol
Note: See section 3.
PROTOCOL TO AMEND THE AGREEMENT BETWEEN AUSTRALIA AND FINLAND FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE I
Sub-paragraph (b) of paragraph (1) of Article 2 of the Agreement shall be deleted and replaced by the following:
(b) in Finland:
(i) the state income taxes;
(ii) the corporate income tax;
(iii) the communal tax,
(iv) the church tax;
(v) the tax withheld at source from interest; and
(vi) the tax withheld at source from non-residents' income.ARTICLE II
Article 10 of the Agreement shall be deleted and replaced by the following:ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, shall be taxable only in that other State.
(2)
Notwithstanding the provisions of paragraph (1), dividends, other than dividends that are paid out of profits that have borne the normal rate of company tax, may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that Contracting State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends. If the relevant existing law in either Contracting State changes after the date of signature of this Agreement, other than in minor respects so as not to affect its general character, the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(3)
For the purposes of paragraph (2), profits have borne the normal rate of company tax:
(a) in Australia, to the extent to which the dividends have been fully "franked" in accordance with its tax; and
(b) in Finland, where they have been subject to the corporate income tax.
(4)
The term "dividends" as used in this Article means income from shares and other income assimilated to income from shares by the taxation law of the Contracting State of which the company making the distribution is a resident for the purposes of its tax.
(5)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In any such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
(6)
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. Provided that this paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Finland for the purposes of Finnish tax.
ARTICLE III
The opening lines and sub-paragraphs (a) and (b) of paragraph (2) of Article 23 of the Agreement shall be deleted and replaced by the following:
(2)
Subject to the provisions of Finnish law regarding the elimination of international double taxation (which shall not affect the general principle hereof), double taxation shall be eliminated in Finland as follows:
(a) where a resident of Finland derives income which, in accordance with the provisions of this Agreement, may be taxed in Australia, Finland shall, subject to the provisions of sub-paragraph (b), allow as a deduction from the Finnish tax of that person, an amount equal to the Australian tax paid under Australian law and in accordance with the Agreement, as computed by reference to the same income by reference to which the Finnish tax is computed;
(b) dividends paid by a company being a resident of Australia to a company which is a resident of Finland and which controls directly at least 10 per cent of the voting power in the company paying the dividends shall be exempt from Finnish tax.ARTICLE IV
Sub-paragraph (i) of paragraph (a) of the Protocol to the Agreement shall be deleted.ARTICLE V
(1)
The Contracting States shall notify each other that the constitutional requirements for the entry into force of this Protocol have been complied with.
(2)
The Protocol shall enter into force thirty days after the date of the later of the notifications referred to in paragraph (1) and its provisions shall have effect:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July in the calendar year next following that in which the Protocol enters into force;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the Protocol enters into force;
(b) in Finland:
(i) in respect of taxes withheld at source, on income derived on after 1 January in the calendar year next following the year in which the Protocol enters into force;
(ii) in respect of other taxes on income, for taxes chargeable for any tax year beginning on or after 1 January in the calendar year next following the year in which the Protocol enters into force.
IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Protocol.
DONE in duplicate at Canberra this fifth day of November 1997, in the English and Finnish languages, both texts being equally authentic.
FOR THE GOVERNMENT OF AUSTRALIA:
PETER COSTELLO
[Signatures omitted]FOR THE GOVERNMENT OF FINLAND:
ESKO HAMILO
History
Sch 25A inserted by No 100 of 2000. The second Finnish protocol entered into force on 17 August 2000.
(Repealed by No 45 of 2011)
History
Sch 26 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Chinese Airline Profits Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 26 formerly read:
SCHEDULE 26 - Chinese Airline Profits Agreement
Section 3
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA FOR THE AVOIDANCE OF DOUBLE TAXATION OF INCOME AND REVENUES DERIVED BY AIR TRANSPORT ENTERPRISES FROM INTERNATIONAL AIR TRANSPORT
ARTICLE 1 Taxes Covered
The taxes to which this Agreement shall apply are:
(a) in the case of Australia: the income tax imposed under the federal law of the Commonwealth of Australia, including the additional tax upon the undistributed amount of the distributable income of a private company;
(b) in the case of the People's Republic of China:
(i) the income tax concerning foreign enterprises; and
(ii) the consolidated industrial and commercial tax including any additional tax on that tax,and 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 taxes referred to in subparagraph (a) or (b).
ARTICLE 2 General Definitions
(1)
In this Agreement:
(a) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" mean Australia or the People's Republic of China, the Governments of which have concluded this Agreement;
(b) the term "enterprise of one of the Contracting States" means an enterprise that is designated, under an Agreement made between the Governments of the Contracting States, to operate authorised scheduled air services between those States and that has its place of effective management in Australia or in the People's Republic of China; and
(c) the term "tax" means the taxes to which this Agreement applies by virtue of Article 1 and which are imposed by Australia or by the People's Republic of China,as the context requires.
(2)
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State relating to the taxes to which this Agreement applies.
ARTICLE 3 Air Transport Profits and Revenues
(1)
Profits and revenues from the operation of aircraft, including sales of tickets and documents relating to such operations, derived by an enterprise of one of the Contracting States shall be exempt from tax in the other Contracting State.
(2)
Notwithstanding the provisions of paragraph (1), such profits and revenues may be taxed in the other Contracting State where they are profits and revenues derived from the carriage by aircraft of passengers, livestock, mail, goods or merchandise solely from one place in that other Contracting State to another place in that State.
(3)
The provisions of paragraphs (1) and (2) shall apply in relation to the share of the profits and revenues from the operation of aircraft derived by an enterprise of one of the Contracting States through participation in a pool service, in a joint transport operating organisation or in an international operating agency.
ARTICLE 4 Entry Into Force
The Government of each of the Contracting States shall give to the Government of the other Contracting State through the diplomatic channel written notice of the completion of the procedures required by its law to give this Agreement the force of law in Australia or in the People's Republic of China as the case may be. This Agreement shall enter into force on the date of the later of those notifications and thereupon shall have effect in respect of profits and revenues derived on or after 1 July 1984.ARTICLE 5 Termination
This Agreement shall continue in effect indefinitely but the Government of either of the Contracting States may give to the Government of the other Contracting State through the diplomatic channel six months prior written notice of termination and, in that event, this Agreement shall cease to be effective in relation to profits and revenues derived on or after 1 January in the calendar year next following that in which that period of six months expires.IN WITNESS WHEREOF the undersigned, duly authorised thereto by their respective Govenments, have signed this Agreement.
DONE in duplicate at Beijing this twenty-second day of November one thousand nine hundred and eighty-five in the English and Chinese languages, both texts being equally authentic.
FOR THE GOVERNMENT OF AUSTRALIA
D.T. IRVINEFOR THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA
LIN RONGSHENG
Sch 26 added by No 46 of 1986. The Chinese Airline Profits agreement entered into force on 14 November 1986.
(Repealed by No 45 of 2011)
History
Sch 27 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Austrian Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 27 formerly read:
SCHEDULE 27 - Austrian Agreement
Section 3
AGREEMENT BETWEEN AUSTRALIA AND THE REPUBLIC OF AUSTRIA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
CHAPTER I SCOPE OF THE AGREEMENT
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States. ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Agreement shall apply are:
(a) in the case of Australia:
the income tax imposed under the federal law of the Commonwealth of Australia, including the additional tax upon the undistributed amount of the distributable income of a private company and the tax known as the resource rent tax;
(b) in the case of Austria:
(i) the income tax (die Einkommensteuer);
(ii) the corporation tax (die Körperschaftsteuer);
(iii) the tax on interest yields (die Zinsertragsteuer);
(iv) the directors tax (die Aufsichtsratsabgabe); and
(v) the tax on commercial and industrial enterprises, including the tax levied on the sum of wages (die Gewerbesteuer einschliesslich der Lohnsummensteuer).
(2)
This Agreement shall also apply to any identical or substantially similar taxes which are imposed under the federal law of the Commonwealth of Australia or the law of the Republic of Austria after the date of signature of this Agreement in addition to, or in place of, the existing taxes. As soon as possible after the end of each calendar year, the competent authority of each Contracting State shall notify the competent authority of the other Contracting State of any substantial changes which have been made in the laws of his State relating to the taxes to which this Agreement applies.
CHAPTER II DEFINITIONS
ARTICLE 3 General Definitions
(1)
In 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 and McDonald Islands; andand includes any area adjacent to the territorial limits of Australia (including the territories specified in subparagraphs (i) to (vi) inclusive) in respect of which there is for the time being in force, consistently with international law, a law of Australia dealing with the exploitation of any of the natural resources of the sea-bed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "Austria" means the Republic of Austria;
(c) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" mean Australia or Austria, as the context requires;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Austria, as the context requires;
(g) the term "tax" means Australian tax or Austrian tax, as the context requires;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "Austrian tax" means tax imposed by Austria, being tax to which this Agreement applies by virtue of Article 2;
(j) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or his authorized representative and, in the case of Austria, the Federal Minister of Finance.
(2)
In this Agreement, the terms "Australian tax" and "Austrian tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes to which this Agreement applies by virtue of Article 2.
(3)
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State from time to time in force relating to the taxes to which this Agreement applies.
ARTICLE 4 Residence
(1)
For the purposes of this Agreement, a person is a resident of one of the Contracting States:
(a) in the case of Australia, if the person is a resident of Australia for the purposes of Australian tax; and
(b) in the case of Austria, if the person is subject to unlimited tax liability under Austrian law.
(2)
A person is not a resident of a Contracting State for the purposes of this Agreement if he is liable to tax in that State in respect only of income from sources in that State.
(3)
Where by reason of the preceding provisions of this Article an individual is a resident of both Contracting States, then his status shall be determined in accordance with the following rules:
(a) he shall be deemed to be a resident solely of the Contracting State in which he has a permanent home available to him;
(b) if he has a permanent home available to him in both Contracting States, or if he does not have a permanent home available to him in either of them, he shall be deemed to be a resident solely of the Contracting State with which his personal and economic relations are the closer.
(4)
Where by reason of the provisions of paragraph (1), a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Agreement, the term "permanent establishment", in relation to an enterprise, means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property;
(h) a building site or construction, installation or assembly project, or supervisory activities in connection with such a site or project, where that site or project exists, or those activities are carried on, for more than twelve months.
(3)
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(4)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (5) applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if:
(a) he has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless his activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting, he manufactures or substantially processes in that State for the enterprise goods or merchandise belonging to the enterprise, provided that the provisions of this subparagraph shall apply only in relation to the goods or merchandise so manufactured or processed.
(5)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of his business as such a broker or agent.
(6)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
(7)
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of this Agreement whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
CHAPTER III TAXATION OF INCOME
ARTICLE 6 Income from Real Property
(1)
Income from real property, including royalties and other payments in respect of the operation of mines or quarries or of the exploitation of any natural resource, may be taxed in the Contracting State in which the real property, mines, quarries or natural resources are situated.
(2)
Income from a lease of land and income from any other direct interest in or over land, whether or not improved, shall be regarded as income from real property situated where the land to which the lease or other direct interest relates is situated.
(3)
The provisions of paragraphs (1) and (2) shall also apply to the income from real property of an enterprise and to income from real property used for the performance of professional services.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph (3), where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
(6)
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
(7)
Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits from insurance with non-residents provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(8)
The provisions of this Article shall also apply to income derived by a sleeping partner from participation in a sleeping partnership (stille Gesellschaft) created under Austrian law.
(9)
Where:
(a) a resident of Austria is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in Australia by the trustee of a trust estate other than a corporate unit trust; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in Australia,the enterprise carried on by the trustee shall be deemed to be a business carried on in Australia by that resident through a permanent establishment situated therein and that share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Ships and Aircraft
(1)
Profits from the operation of ships or aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1), such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
(3)
The provisions of paragraphs (1) and(2) shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organization or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in one of the Contracting States for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
(5)
Income derived by an enterprise of one of the Contracting States from the alienation of ships or aircraft operated in international traffic while owned by that enterprise or of personal property pertaining to the operation of those ships or aircraft shall be taxable only in that State.
ARTICLE 9 Associated Enterprises
(1)
Where:
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the income to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
(3)
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph (1) or (2), in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the first-mentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends.
(3)
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the law, relating to tax, of the Contracting State of which the company making the distribution is a resident for the purposes of its tax.
(4)
The provisions of paragraph (2) shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In any such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. Provided that this paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Austria for the purposes of Austrian tax.
(6)
Nothing in this Agreement shall be construed as preventing Australia from imposing, under a federal law, tax on the income of a company that is a resident of Austria in addition to the taxes referred to in Article 2 in relation to Australia which are payable by a company which is a resident of Australia, provided that any such additional tax shall not exceed 15 per cent of the amount by which the taxable income of the first-mentioned company of a year of income exceeds the tax payable on that taxable income to Australia. Any tax payable to Australia on the undistributed profits of a company which is a resident of Austria shall be calculated as if that company were not liable to the additional tax referred to in this paragraph and had paid dividends of such amount that tax equal to the amount of that additional tax would have been payable on the dividends in accordance with paragraph (2) of this Article.
ARTICLE 11 Interest
(1)
Interest arising in one of the Contracting States,being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to income from money lent by the law, relating to tax, of the Contracting State in which the income arises.
(4)
The provisions of paragraph (2) shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the indebtedness in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether he is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 12 Royalties
(1)
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
(3)
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 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);
(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.
(4)
The provisions of paragraph (2) shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the property or right in respect of which the royalties are paid or credited is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether he is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of Property
(1)
Income from the alienation of real property may be taxed in the Contracting State in which that property is situated.
(2)
For the purposes of this Article:
(a) the term "real property" shall include:
(i) a lease of land or any other direct interest in or over land;
(ii) rights to exploit, or to explore for, natural resources; and
(iii) shares or comparable interests in a company, the assets of which consist wholly or principally of direct interests in or over land in one of the Contracting States or of rights to exploit, or to explore for, natural resources in one of the Contracting States;
(b) real property shall be deemed to be situated:
(i) where it consists of direct interests in or over land - in the Contracting State in which the land is situated;
(ii) where it consists of rights to exploit, or to explore for, natural resources - in the Contracting State in which the natural resources are situated or the exploration may take place; and
(iii) where it consists of shares or comparable interests in a company, the assets of which consist wholly or principally of direct interest in or over land in one of the Contracting States or of rights to exploit, or to explore for, natural resources in one of the Contracting States - in the Contracting State in which the assets or the principal assets of the company are situated.
ARTICLE 14 Independent Personal Services
(1)
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless he has a fixed base regularly available to him in the other Contracting State for the purpose of performing his activities. If he has such a fixed base, the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base.
(2)
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the year of income or the taxable year, as the case may be, of that other State;
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State;
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State; and
(d) the remuneration is, or upon the application of this Article will be, subject to tax in the first-mentioned State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that State.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a resident of one of the Contracting States in his capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State. ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
(2)
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
ARTICLE 18 Pensions and Annuities
(1)
Subject to the provisions of paragraph (2) of Article 19, pensions and annuities paid to a resident of one of the Contracting States shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
(3)
Any alimony or other maintenance payment arising in one of the Contracting States and paid to a resident of the other Contracting State shall be taxable only in the first-mentioned State.
ARTICLE 19 Government Service
(1)
Remuneration, other than a pension or annuity, paid by one of the Contracting States or a political subdivision or local authority of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen or national of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
(2)
(a) Subject to the provisions of subparagraph (paragraph (b)), a pension paid by, or out of funds created by, one of the Contracting States or a political subdivision or a local authority of that State to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.
(b) A pension referred to in subparagraph (a) shall be taxable only in the other Contracting State if the individual is a resident of, and a citizen or national of, that State.
(3)
The provisions of paragraph (1) shall also apply to remuneration paid out of public funds provided by Austria to any individual in respect of services rendered as a member of the Austrian permanent delegation of foreign commerce in Australia.
(4)
The provisions of paragraph (1) shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by one of the Contracting States or a political subdivision or local authority of that State. In such a case, the provisions of Article 15 or Article 16, as the case may be, shall apply.
ARTICLE 20 Students
Where a student, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of his education, receives payments from sources outside that other State for the purpose of his maintenance or education, those payments shall be exempt from tax in that other State. ARTICLE 21 Income Not Expressly Mentioned
(1)
Items of income of a resident of one of the Contracting States which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable only in that State.
(2)
However, any such income derived by a resident of one of the Contracting States from sources in the other Contracting State may also be taxed in that other State.
(3)
The provisions of paragraph (1) shall not apply to income derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
ARTICLE 22 Source of Income
(1)
Income derived by a resident of Austria which, under any one or more of Articles 6 to 8, Articles 10 to 19 and Article 21, may be taxed in Australia shall for the purposes of the law of Australia relating to Australian tax be deemed to be income from sources in Australia.
(2)
Income derived by a resident of Australia which, under any one or more of Articles 6 to 8, Articles 10 to 19 and Article 21, may be taxed in Austria shall for the purposes of paragraph (1) of Article 23 and of the law of Australia relating to Australian tax be deemed to be income from sources in Austria.
CHAPTER IV METHODS OF ELIMINATION OF DOUBLE TAXATION
ARTICLE 23
(1)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Austrian tax paid under the law of Austria and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Austria (not including, in the case of a dividend, tax paid in respect of the profits out of which the dividend is paid) shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
For the purposes of paragraph (1), the term "Austrian tax" shall include the tax on commercial and industrial enterprises, referred to in subparagraph (b)(v) of paragraph (1) of Article 2, only where it is levied on a basis other than capital or the sum of wages.
(3)
In the case of a resident of Austria double taxation shall be avoided as follows:
(a) where a resident of Austria derives income which in accordance with the provisions of this Agreement may be taxed in Australia, Austria shall, subject to the provisions of subparagraphs (b) and (c), exempt such income from tax;
(b) where a resident of Austria derives items of income which, in accordance with the provisions of paragraph (2) of Article 10, 11 or 12, paragraph (1) of Article 13 (in regard only to income from the alienation of real property as defined in subparagraph (2)(a)(iii) of that Article) or paragraph (2) of Article 21, may be taxed in Australia, Austria shall allow as a deduction from the tax on the income of that resident an amount equal to the tax paid in Australia. Such deduction shall not, however, exceed that part of the tax as computed before the deduction is given, which is attributable to such items of income derived in Australia; and
(c) where in accordance with any provision of this Agreement income derived by a resident of Austria, is exempt from tax in Austria, may nevertheless, in calculating the amount of tax on the remaining income of that resident, take into account the exempted income.
(4)
If, in an agreement for the avoidance of double taxation that is made, after the date of signature of this Agreement, between Australia and a third State, being a State that is a member of the Organization for Economic Co-operation and Development, Australia agrees to limit the rate of tax:
(a) 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 (2) of Article 10;
(b) on interest arising in Australia to which a resident of the third State is entitled, to a rate less than that provided in paragraph (2) of Article 11; or
(c) on royalties arising in Australia to which a resident of the third State is entitled, to a rate less than that provided in paragraph (2) of Article 12,the Government of Australia shall immediately inform the Government of Austria in writing through the diplomatic channel and shall enter into negotiations with the Government of Austria to review the relevant provision or provisions in order to provide the same treatment for Austria as that provided for the third State.
CHAPTER V SPECIAL PROVISIONS
ARTICLE 24 Mutual Agreement Procedure
(1)
Where a resident of one of the Contracting States considers that the actions of the competent authority of one or both of the Contracting States result or will result for him in taxation not in accordance with this Agreement he may, notwithstanding the remedies provided by the national laws of those States, present his case to the competent authority of the Contracting State of which he is a resident. The case must be presented within three years from the first notification of the action giving rise to taxation not in accordance with this Agreement.
(2)
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the national laws of the Contracting States.
(3)
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the application of this Agreement.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 25 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the domestic laws of the Contracting States concerning the taxes to which this Agreement applies insofar as the taxation thereunder is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
(2)
In no case shall the provisions of paragraph (1) be construed so as to impose on the competent authority of a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; or
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 26 Diplomatic and Consular Officials
Nothing in this Agreement shall affect diplomatic or consular privileges under the general rules of international law or under the provisions of special international agreements.CHAPTER VI FINAL PROVISIONS
ARTICLE 27 Entry into Force
This Agreement shall enter into force on the first day of the third month next following that in which the Contracting States exchange notes through the diplomatic channel notifying each other that the last of such constitutional processes has been completed as are necessary to give this Agreement the force of law in Australia and in Austria, as the case may be, and thereupon this Agreement shall have effect:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the Agreement enters into force; and
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(b) in Austria:
(i) in respect of tax withheld at the source on amounts paid on or after 1 January in the calendar year next following that in which the Agreement enters into force; andARTICLE 28 Termination
(ii) in respect of other Austrian tax for taxable years beginning on or after 1 January in the calendar year next following that in which the Agreement enters into force.
This Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in Austria:
(i) in respect of tax withheld at the source on amounts paid on or after 1 January in the calendar year next following that in which the notice of termination is given; and
(ii) in respect of other Austrian tax for taxable years beginning on or after 1 January in the calendar year next following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.
DONE in duplicate in Vienna this eighth day of July One thousand nine hundred and eighty-six, in the English and German languages, both texts being equally authentic.
J.R. KELSO
FOR AUSTRALIADr E. BAUER
FOR THE REPUBLIC OF AUSTRIA
Sch 27 added by No 112 of 1986. The Austrian agreement entered into force on 1 September 1988.
(Repealed by No 45 of 2011)
History
Sch 28 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Chinese Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 28 formerly read:
SCHEDULE 28 - Chinese Agreement
Section 3
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes Covered
1.
The existing taxes to which this Agreement shall apply are:
(a) in Australia:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of the Commonwealth of Australia;
(b) in China:
the income tax imposed under the laws of the People's Republic of China.
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 States shall notify each other of any substantial changes which have been made in their respective taxation laws within a reasonable period of time after such changes.
ARTICLE 3 General Definitions
1.
In 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; andand 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 exploitation of any of the natural resources of the seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "China" means the People's Republic of China and, when used in a geographical sense, it means all the territory of the People's Republic of China, including its territorial sea, in which the laws relating to Chinese tax apply, and any area beyond its territorial sea, within which the People's Republic of China has sovereign rights of exploration for and exploitation of resources of the seabed and its subsoil and superjacent water resources in accordance with international law;
(c) the terms "a Contracting State" and "the other Contracting State" mean, as the context requires, Australia or China, the Governments of which have concluded this Agreement;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean, respectively, an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State, as the context requires;
(g) the term "tax" means Australian tax or Chinese tax, as the context requires;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "Chinese tax" means tax imposed by China, being tax to which this Agreement applies by virtue of Article 2;
(j) 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 China, the State Taxation Administration or its authorised representative.
2.
In this Agreement, the terms "Australian tax" and "Chinese tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes to which this Agreement applies by virtue of Article 2.
3.
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State from time to time in force relating to the taxes to which this Agreement applies.
ARTICLE 4 Resident
1.
For the purpose of this Agreement, the term "resident", in relation to a Contracting State, means a person who is fully liable to tax therein by reason of being a resident of that State under the tax law of that State.
2.
A person is not a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
3.
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the status of the person shall be determined in accordance with the following rules:
(a) the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person;
(b) if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State with which the person's economic and personal relations are the closer.
4.
Where by reason of the provisions of paragraph (1) a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management or head office is situated. However, where such a person has its place of effective management in a Contracting State and its head office in the other Contracting State, the person shall be deemed to be a resident solely of that other State.
5.
If a company has become a resident of a Contracting State for the principal purpose of enjoying benefits under this Agreement, that company shall not be entitled to any of the benefits of Articles 10, 11 and 12.
6.
Where by reason of the provisions of paragraph (1) a company is a resident of Australia and, under a tax agreement between China and a third country, is also a resident of that third country, the company shall not be considered to be a resident of Australia for the purposes of enjoying benefits under this Agreement.
ARTICLE 5 Permanent Establishment
1.
For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
2.
The term "permanent establishment" includes especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) a farm or forest.
3.
The term "permanent establishment" likewise encompasses:
(a) a building site, a construction, assembly or installation project, or supervisory activities in connection therewith, but only where that site or project or those activities continue for a period of more than six months;
(b) the furnishing of services, including consultancy services, in a Contracting State by an enterprise of the other Contracting State through employees or other personnel engaged by the enterprise for such purpose, but only where those activities continue (for the same or a connected project) within the first-mentioned Contracting State for a period or periods aggregating more than six months within any twelve-month period; and
(c) a structure, installation, drilling rig, ship or other equipment used for the exploration for or exploitation of natural resources, or in activities connected with that exploration or exploitation, but only if so used continuously, or those activities continue, for a period of more than three months.
4.
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character, such as advertising or scientific research.
5.
A person acting in a Contracting State on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (6) applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if:
(a) the person has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) the person manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
6.
An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other Contracting State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business. However, when the activities of such an agent are devoted wholly or almost wholly on behalf of that enterprise, it will not be considered an agent of an independent status within the meaning of this paragraph.
7.
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
ARTICLE 6 Income from Real Property
1.
Income from real property may be taxed in the Contracting State in which the real property is situated.
2.
In this Article, the term "real property":
(a) in the case of Australia, shall have 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;
(ii) a right to receive variable or fixed payments either as consideration for the exploitation of or the right to explore for or exploit, or in respect of the exploitation of, mineral deposits, oil or gas wells, quarries or other places of extraction or exploitation of natural resources;
(b) in the case of China, shall have the meaning which it has under the laws of China, and shall also include:
(i) property accessory to immovable property and livestock and equipment used in agriculture and forestry;
(ii) rights to which the provisions of the general law respecting landed property apply; and
(iii) usufruct of immovable property and rights to variable or fixed payments either as consideration for the exploitation of or the right to explore for or exploit, or in respect of the exploitation of, mineral deposits, sources and other natural resources; and
(c) shall not include ships or aircraft.
3.
Any interest, right or property referred to in any of the subparagraphs of paragraph (2) shall be regarded as situated where the land, mineral deposits, oil or gas wells, quarries or natural resources, as the case may be, are situated.
4.
The provisions of paragraph (1) shall apply to income from the direct use, letting or use in any other form of real property.
5.
The provisions of paragraphs (1), (3) and (4) 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.
ARTICLE 7 Business Profits
1.
The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
2.
Subject to the provisions of paragraph (3), where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
3.
In the determination of the profits of a permanent establishment, there shall be allowed as deductions, in accordance with the law relating to tax in the Contracting State in which the permanent establishment is situated, expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) whether in the State in which the permanent establishment is situated or elsewhere. No such deduction shall be allowed in respect of amounts, if any, paid (otherwise than towards reimbursement of actual expenses) by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission, for specific services performed or for management, or by way of interest on moneys lent to the permanent establishment. Likewise, no account shall be taken, in the determination of the profits of a permanent establishment, for amounts charged (otherwise than towards reimbursement of actual expenses) by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission for specific services performed or for management, or by way of interest on moneys lent to the head office of the enterprise or any of its other offices.
4.
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5.
For the purposes of paragraphs (1) to (4), the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.
6.
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the profits to be attributed to a permanent establishment in cases where the information available to the competent authority of that State is inadequate to determine those profits, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
7.
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
8.
Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits from insurance with non-residents provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
9.
Where:
(a) a resident of a Contracting State is beneficially entitled, whether directly or indirectly through one or more trusts, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee has, in accordance with the principles of Article 5, a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in that other State by that resident through a permanent establishment situated therein and the resident's share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Shipping and Air Transport
1.
Profits from the operation of ships derived by a resident of a Contracting State shall be taxable only in that State.
2.
Notwithstanding the provisions of paragraph (1), such profits may be taxed in the other Contracting State where they are profits from operations of ships confined solely to places in that other State.
3.
The provisions of paragraphs (1) and (2) shall also apply to profits from participation in a pool, a joint business or an international operating agency.
4.
For the purposes of this Article, profits derived from the carriage by ships of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from operations of ships confined solely to places in that State.
5.
Nothing in this Agreement shall affect the operation of the Agreement between the Government of Australia and the Government of the People's Republic of China for the Avoidance of Double Taxation of Income and Revenues Derived by Air Transport Enterprises from International Air Transport signed at Beijing on 22 November 1985.
ARTICLE 9 Associated Enterprises
1.
Where:
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,and in either case conditions apply between the two enterprises in their commercial or financial relations which differ from those which might be expected to apply between independent enterprises dealing wholly independently with each other, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2.
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the profits to be attributed to an enterprise, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
3.
Where a Contracting State includes in the profits of an enterprise of that Contracting State - and taxes accordingly - profits on which an enterprise of the other Contracting State has been charged to tax in that other Contracting State, and the profits so included are profits which might have been expected to have accrued to the enterprise of the first-mentioned State if the conditions applying between the two enterprises had been those which might have been expected to apply between independent enterprises, then that other Contracting State shall make an appropriate adjustment to the amount of tax charged therein on those profits. In determining such adjustment, due regard shall be had to the other provisions of this Agreement and the competent authorities of the Contracting States shall, if necessary, consult each other for this purpose.
ARTICLE 10 Dividends
1.
Dividends which are paid by a company which is a resident of a Contracting State and which are beneficially owned by a resident of the other Contracting State may be taxed in that other State.
2.
Such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends. The provisions of this paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.
3.
The term "dividends" as used in this Article means income from shares or other rights participating in profits and not relating to debt-claims, as well as other income which is subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribution is a resident.
4.
The provisions of paragraphs (1) and (2) shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
5.
Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other Contracting State may not impose any tax on the dividends paid by the company, except insofar as such dividends are beneficially owned by a resident of that other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State, nor subject the company's undistributed profits to tax even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in that other State.
ARTICLE 11 Interest
1.
Interest arising in a Contracting State, being interest of which a resident of the other Contracting State is the beneficial owner, may be taxed in that other State.
2.
However, such interest may also be taxed in the Contracting State in which it arises and according to the laws of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3.
The term "interest" in this Article means interest from debt-claims of every kind, whether or not secured by mortgage and whether or not carrying a right to participate in the debtor's profits, and in particular income from Government securities or from bonds or debentures, and all other income that is assimilated to income from money lent by the law, relating to tax, of the Contracting State in which the income arises.
4.
The provisions of paragraphs (1) and (2) shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises, through a permanent establishment situated therein, or performs in that other Contracting State independent personal services from a fixed base situated therein, and the indebtedness in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
5.
Interest shall be deemed to arise in a Contracting State when the payer is that Contracting State, a political subdivision or a local authority of that State or a person who, by reason of the provisions of paragraph (1) of Article 4, is a resident of that State. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the arrangement under which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the Contracting State in which the permanent establishment or fixed base is situated.
6.
Where, by reason of a special relationship between the payer and the beneficial owner of the interest, or between both of them and some other person, the amount of the interest paid, having regard to the debt-claim for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such a case, the excess part of the payments shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 12 Royalties
1.
Royalties which arise in a Contracting State and which are beneficially owned by a resident of the other Contracting State may be taxed in that other State.
2.
Such royalties may be taxed in the Contracting State in which they arise, and according to the laws of that Contracting State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
3.
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 know-how or information;
(d) the supply of any assistance that is 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 know-how or information as is mentioned in subparagraph (c);
(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) giving up, wholly or partly, a right relating to the use or supply of any property or right referred to in this paragraph.
4.
The provisions of paragraphs (1) and (2) shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid or credited is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
5.
Royalties shall be deemed to arise in a Contracting State when the payer is that Contracting State, a political subdivision or local authority of that State or a person who, by reason of the provisions of paragraph (1) of Article 4, is a resident of that State. Where, however, the person paying the royalties, whether the person is a resident of a Contracting State or not, has in a Contracting State a permanent establishment or a fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by that permanent establishment or fixed base, then the royalties shall be deemed to arise in the Contracting State in which the permanent establishment or fixed based is situated.
6.
Where, by reason of a special relationship between the payer and the beneficial owner of the royalties or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or creditedfor, exceeds the amount which might have been expected to have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such a case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of Property
1.
Income or gains derived by a resident of a Contracting State from the alienation of real property referred to in Article 6 and, as provided in that Article, situated in the other Contracting State may be taxed in that other State.
2.
Income or gains from the alienation of property, other than real property referred to in Article 6, that forms part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or pertains to a fixed base available to a resident of the first-mentioned State in that other State for the purpose of performing independent personal services, including income or gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base, may be taxed in that other State.
3.
Income or gains from the alienation of ships or aircraft operated in international traffic, or of property other than real property referred to in Article 6 pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise which operated those ships or aircraft is a resident.
4.
Income or gains derived by a resident of a Contracting State from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of real property in the other Contracting State of a kind referred to in Article 6, may be taxed in that other State.
5.
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of property other than that to which any of paragraphs (1), (2), (3) and (4) apply.
ARTICLE 14 Independent Personal Services
1.
Income derived by an individual who is a resident of a Contracting State in respect of professional services or other independent activities of a similar character shall be taxable only in that State except in one of the following circumstances, when the income may also be taxed in the other Contracting State:
(a) if the individual has a fixed base regularly available to him or her in the other Contracting State for the purpose of performing his or her activities; in such a case, only so much of the income as is attributable to that fixed base may be taxed in that other Contracting State; or
(b) if the individual's stay in the other Contracting State is for a period or periods exceeding in the aggregate 183 days in any consecutive period of 12 months; in such a case, only so much of the income as is derived from his or her activities performed in that other State may be taxed in that other State.
2.
The term "professional services" includes especially those performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
1.
Subject to the provisions of Articles 16, 18, 19, 20 and 21, salaries, wages and other similar remuneration derived by an individual who is a resident of a Contracting State in respect of an employment shall be taxable only in that Contracting State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
2.
Notwithstanding the provisions of paragraph (1), remuneration derived by a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
(a) the recipient is present in the other Contracting State for a period or periods not exceeding in the aggregate 183 days in any consecutive period of 12 months;
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not borne by a permanent establishment or a fixed base which the employer has in that other State.
3.
Notwithstanding the provisions of paragraphs (1) and (2), remuneration derived in respect of an employment exercised aboard a ship or aircraft operated by an enterprise of a Contracting State in international traffic, shall be taxable only in the Contracting State of which the enterprise is a resident.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a person who is a resident of a Contracting State in the person's capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Artistes and Athletes
1.
Notwithstanding the provisions of Articles 14 and 15, income derived by residents of a Contracting State as entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such exercised in the other Contracting State may be taxed in that other State.
2.
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
3.
Notwithstanding the provisions of paragraphs (1) and (2), income derived by entertainers who are residents of a Contracting State from their activities as such exercised in the other Contracting State under a plan of cultural exchange between the Governments of the Contracting States shall be exempt from tax in that other Contracting State.
ARTICLE 18 Pensions
Subject to the provisions of paragraph (2) of Article 19, pensions paid to a resident of a Contracting State in consideration of past employment, and payments made to a resident of that State under the social security system of the other Contracting State, shall be taxable only in the first-mentioned State.ARTICLE 19 Government Service
1.
(a) Remuneration, other than a pension, paid by a Contracting State or a political subdivision or local authority of that State to an individual in respect of services rendered in the discharge of functions of a governmental nature shall be taxable only in that Contracting State.
(b) However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the individual is a resident of that other State who:
(i) is a citizen or national of that other State; or
(ii) did not become a resident of that other State solely for the purpose of rendering the services.
2.
(a) Any pension paid by, or out of funds created by, a Contracting State or a political subdivision or local authority of that State to an individual in respect of services rendered to that State or subdivision 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 citizen or national of, that other State.
3.
The provisions of paragraphs (1) and (2) shall not apply to remuneration or pensions in respect of services rendered in connection with any trade or business carried on by a Contracting State or a political subdivision or local authority of that State. In such a case, the provisions of Articles 15, 16, 17 or 18, as the case may be, shall apply.
ARTICLE 20 Professors and Teachers
1.
Where a professor or teacher who is a resident of a Contracting State visits the other Contracting State for a period not exceeding two years for the purpose of teaching or carrying out advanced study or research at a university, college, school or other educational institution in that other State, any remuneration the person receives for such teaching, advanced study or research shall be exempt from tax in that other State to the extent to which that remuneration is, or upon the application of this Article will be, subject to tax in the first-mentioned State.
2.
This Article shall not apply to remuneration which a professor or teacher receives for conducting research if the research is undertaken primarily for the private benefit of a specific person or persons.
ARTICLE 21 Students and Trainees
1.
Where a student or trainee, who is a resident of a Contracting State or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of his or her education or training, receives payments from sources outside that other State for the purpose of his or her maintenance, education or training, those payments shall be exempt from tax in that other State.
2.
In respect of grants, scholarships and remuneration not covered by paragraph (1), a student or trainee described in paragraph (1) shall, in addition, be entitled during his or her education or training to the same exemptions, reliefs or reductions in respect of taxes available to residents of the State which he or she is visiting.
ARTICLE 22 Other Income
1.
Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that State.
2.
The provisions of paragraph (1) shall not apply to income other than income from real property as defined in paragraph (2) of Article 6, if the beneficial owner of such income, being a resident of a Contracting State, carries on business in the other Contracting State through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the income is paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
3.
Notwithstanding the provisions of paragraphs (1) and (2), items of income of a resident of a Contracting State not dealt with in the foregoing articles of this Agreement and arising in the other Contracting State may be taxed in that other State.
ARTICLE 23 Methods of Elimination of Double Taxation
1.
In China, double taxation shall be eliminated as follows:
(a) Where a resident of China derives income from Australia, the amount of tax on that income payable in Australia in accordance with the provisions of this Agreement may be credited against the Chinese tax imposed on that resident. The amount of credit, however, shall not exceed the amount of the Chinese tax on that income computed in accordance with the taxation laws and regulations of China.
(b) Where the income derived from Australia is a dividend paid by a company which is a resident of Australia to a company which is a resident of China and which owns not less than 10 per cent of the sharesof the company paying the dividend, the credit shall take into account the tax paid to Australia by the company paying the dividend in respect of its income.
2.
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Chinese tax paid under the law of China and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in China shall be allowed as a credit against Australian tax payable in respect of that income.
3.
Where a company which is a resident of China and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 per cent of the voting power of the first-mentioned company, the credit referred to in paragraph (2) shall include the Chinese tax paid by that first-mentioned company in respect of that portion of its profits out of which the dividend is paid.
4.
For the purpose of paragraphs (2) and (3), Chinese tax paid shall include an amount equivalent to the amount of any Chinese tax forgone.
5.
In paragraph (4), the term "Chinese tax forgone" means, subject to paragraph (6), an amount which, under the law of China relating to Chinese tax and in accordance with this Agreement, would have been payable as Chinese tax on income but for an exemption from, or reduction of, Chinese tax on that income in accordance with:
(a) Articles 5 and 6 of the Income Tax Law of the People's Republic of China concerning Joint Ventures with Chinese and Foreign Investment and Article 3 of the Detailed Rules and Regulations for the Implementation of the Income Tax Law of the People's Republic of China concerning Joint Ventures with Chinese and Foreign Investment;
(b) Articles 4 and 5 of the Income Tax Law of the People's Republic of China concerning Foreign Enterprises;
(c) Articles I, II, III, IV and X of Part I, Articles I, II, III and IV of Part II and Articles I, II and III of Part III of the interim provisions of the State Council of the People's Republic of China on reduction in or exemption from enterprise income tax and the consolidated industrial and commercial tax for special economic zones and fourteen coastal cities;
(d) Articles 12 and 19 of the State Council Regulations for the Encouragement of Investment in the Development of Hainan Island;
(e) Articles 8, 9 and 10 of the State Council Regulations concerning the Encouragement of Foreign Investment; and
(f) Articles 1, 2 and 3 of the interim provisions of the Ministry of Finance of the People's Republic of China regarding (reduction in or exemption from) enterprise income tax and industrial and commercial consolidated tax for encouraging foreign investment in the coastal open economic areas;insofar as they were in force on, and have not been modified since, the date of signature of this Agreement, or have been modified only in minor respects so as not to affect their general character and any other provision which may subsequently be made granting an exemption from or reduction of tax which the Treasurer of Australia and the Commissioner of the State Taxation Administration of China agree from time to time in letters exchanged for this purpose to be of a substantially similar character, if that provision has not been modified thereafter or has been modified only in minor respects so as not to affect its general character.
6.
In the application of paragraph (5) in relation to dividend, interest and royalty income to which Articles 10, 11 and 12 respectively apply, the amount of Chinese tax shall be deemed to be the amount equal to:
(a) in the case of dividends, 15 per cent of the gross amount of those dividends;
(b) in the case of interest, 10 per cent of the gross amount of that interest; and
(c) in the case of royalties, 15 per cent of the gross amount of those royalties, but only where the rate of tax levied under the law of China, other than a provision specified in paragraph (5), is not less than 15 per cent.
7.
Paragraphs (4), (5) and (6) shall apply only in relation to income derived in any of the first ten years of income in relation to which this Agreement has effect by virtue of subparagraph (a)(ii) of Article 27 and in any later year of income that may be agreed by the Treasurer of Australia and the Commissioner of the State Taxation Administration of China in letters exchanged for this purpose.
8.
For the purposes of this Article, profits, income or gains derived by a resident of a Contracting State which are taxed in the other Contracting State in accordance with this Agreement shall be deemed to be income arising from sources in that other State.
ARTICLE 24 Mutual Agreement Procedure
1.
Where a person considers that the actions of the competent authority of one or both of the Contracting States result or will result for the person in taxation not in accordance with the provisions of this Agreement, the person may, irrespective of the remedies provided by the domestic law of those States, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within three years from the first notification of the action resulting in taxation not in accordance with the provisions of this Agreement.
2.
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with the provisions of this Agreement. Any agreement reached shall be implemented notwithstanding any time limits in the domestic law of the Contracting States.
3.
The competent authorities of the Contracting States shall endeavour to resolve by agreement any difficulties or doubts arising as to the application of this Agreement.
4.
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 25 Exchange of Information
1.
The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out the provisions of this Agreement or of the domestic laws of the Contracting States concerning taxes covered by this Agreement, insofar as the taxation thereunder is not contrary to this Agreement, in particular for the prevention of avoidance or evasion of such taxes. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) involved in the assessment or collection of, the enforcement of prosecution in respect of, or the determination of appeals in relation to, the taxes covered by this Agreement and shall be used only for such purposes.
2.
In no case shall the provisions of paragraph (1) be construed so as to impose on the competent authority of a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information the disclosure of which would be contrary to public policy.
ARTICLE 26 Diplomatic Agents and Consular Officers
Nothing in this Agreement shall affect the fiscal privileges of diplomatic agents or consular officers under the general rules of international law or under the provisions of special agreements.ARTICLE 27 Entry into Force
This Agreement shall enter into force on the date on which the Contracting States exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in China, as the case may be, and thereupon this Agreement shall have effect:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(b) in China:
in respect of income derived during any taxable year beginning on or after 1 January next following that in which this Agreement enters into force.ARTICLE 28 Termination
This Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in China:
in relation to income of any taxable year beginning on or after 1 January next following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.
DONE in duplicate at Canberra this 17th day of November One thousand nine hundred and eighty-eight in the English and Chinese languages, both texts being equally authentic.
P. J. KEATING
FOR THE GOVERNMENT OF AUSTRALIAQIAN QICHEN
FOR THE GOVERNMENT OF THE PEOPLE'S REPUBLIC OF CHINA
Sch 28 inserted by No 121 of 1990. The Chinese agreement commenced on 28 December 1990.
(Repealed by No 45 of 2011)
History
Sch 29 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Papua New Guinea Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 29 formerly read:
SCHEDULE 29 - Papua New Guinea Agreement
Section 3
AGREEMENT BETWEEN AUSTRALIA AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes Covered
1.
The existing taxes to which this Agreement shall apply are:
(a) in Australia:
the income tax, and the petroleum resource rent tax in respect of offshore projects, imposed under the federal law of the Commonwealth of Australia;
(b) in Papua New Guinea:
the income tax imposed under the law of Papua New Guinea, including:
(i) the salary or wages tax;
(ii) the additional profits tax upon taxable additional profits from mining operations;
(iii) the additional profits tax upon taxable additional profits from petroleum operations;
(iv) the specific gains tax upon taxable specific gains; and
(v) the dividend withholding tax upon taxable dividend income.
2.
This Agreement shall also apply to any identical or substantially similar taxes which are imposed under the federal law of the Commonwealth of Australia or under the law of Papua New Guinea after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which are made in the laws of their respective States relating to the taxes to which this Agreement applies.
ARTICLE 3 General Definitions
1.
In 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 and McDonald Islands; andand includes any area adjacent to the territorial limits of Australia (including the Territories specified in subparagraphs (i) to (vi) inclusive) in respect of which there is for the time being in force, consistently with international law, a law of Australia dealing with the exploitation of any of the natural resources of the sea-bed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "Papua New Guinea" means the Independent State of Papua New Guinea and, when used in a geographical sense, includes any area adjacent to the territorial limits of Papua New Guinea in respect of which there is for the time being in force, consistently with international law, a law of Papua New Guinea dealing with the exploitation of any of the natural resources of the continental shelf, its sea-bed and subsoil;
(c) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" mean Australia or Papua New Guinea, as the context requires;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Papua New Guinea, as the context requires;
(g) the term "tax" means Australian tax or Papua New Guinea tax, as the context requires;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "Papua New Guinea tax" means tax imposed by Papua New Guinea, being tax to which this Agreement applies by virtue of Article 2;
(j)the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or an authorized representative of the Commissioner and, in the case of Papua New Guinea, the Chief Collector of Taxes or an authorized representative of the Chief Collector of Taxes.
2.
In this Agreement, the terms "Australian tax" and "Papua New Guinea tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes to which this Agreement applies by virtue of Article 2.
3.
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State from time to time in force relating to the taxes to which this Agreement applies.
ARTICLE 4 Residence
1.
For the purposes of this Agreement, a person is a resident of one of the Contracting States:
(a) in the case of Australia, if the person is a resident of Australia for the purposes of Australian tax; and
(b) in the case of Papua New Guinea, if the person is a resident of Papua New Guinea for the purposes of Papua New Guinea tax.
2.
A person is not a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
3.
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the status of the person shall be determined in accordance with the following rules:
(a) the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person;
(b) if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State in which the person has an habitual abode;
(c) if the person has an habitual abode in both Contracting States, or if the person does not have an habitual abode in either of them, the person shall be deemed to be a resident solely of the Contracting State with which the person's personal and economic relations are the closer.
4.
Where by reason of the provisions of paragraph (1) a company is a resident of both Contracting States, then its status shall be determined in accordance with the following rules:
(a) it shall be deemed to be a resident solely of the Contracting State in which its place of central management and control is situated;
(b) if its place of central management and control is not situated in either Contracting State, it shall be deemed to be a resident solely of the Contracting State in which it was incorporated.
5.
Where a trust estate is treated by the laws of both Contracting States relating to tax as a resident or a resident trust estate, it shall not be treated, for the purposes of this Agreement, as a resident of either State.
ARTICLE 5 Permanent Establishment
1.
For the purposes of this Agreement, the term "permanent establishment", in relation to an enterprise, means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
2.
The term "permanent establishment" shall include especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property;
(h) a building site or construction, installation or assembly project which exists for more than 90 days.
3.
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
4.
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if:
(a) it carries on supervisory activities in that State for more than 90 days in connection with a building site, or a construction, installation or assembly project which is being undertaken, in that State;
(b) substantial equipment is being used in that State by, for or under contract with the enterprise; or
(c) services are furnished in that State, including consultancy services through employees or other personnel engaged by the enterprise for such purposes, and those activities continue for the same or a connected project within that State for a period or periods aggregating more than 90 days in any year of income.
5.
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (6) applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if:
(a) the person has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the mere purchase of goods or merchandise for the enterprise;
(b) the person has no such authority, but habitually maintains in that State a stock of goods or merchandise from which the person regularly delivers in that State goods or merchandise on behalf of the enterprise; or
(c) in so acting, the person manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
6.
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a person who is a broker, general commission agent or any other agent of an independent status and is acting in the ordinary course of the person's business as such a broker or agent.
7.
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
8.
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of this Agreement whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
ARTICLE 6 Income from Real Property
1.
Income from real property may be taxed in the Contracting State in which the real property is situated.
2.
In this Article, the term "real property", in relation to one of the Contracting States, has the meaning which it has under the laws of that State and also includes:
(a) a lease of land and any other interest in or over land including a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine such deposits or resources; and
(b) a right to receive variable or fixed payments either as consideration for the exploitation of or the right to explore for or exploit, or in respect of the exploitation of, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources.
3.
Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
4.
The provisions of paragraphs 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 professional services.
ARTICLE 7 Business Profits
1.
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to:
(a) that permanent establishment; or
(b) sales within that other Contracting State of goods or merchandise of the same or a similar kind as those sold, or other business activities within that other State of the same or a similar kind as those carried on, through that permanent establishment, if, on the basis of the information available to the competent authority of that other State, it may reasonably be concluded that those sales or business activities would not have been made or carried on but for the existence of that permanent establishment or the continued provision by it of goods or services.
2.
Subject to the provisions of paragraph 3, where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
3.
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
4.
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5.
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
6.
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
7.
Nothing in this Article shall affect the operation of:
(a) any law of a Contracting State relating to tax imposed on profits from insurance with non-residents; or
(b) the law of Papua New Guinea relating to:
(i) the specific gains tax upon taxable specific gains; or
(ii) the taxation of income derived by a foreign contractor from a prescribed contract within the meaning of that law, where, in accordance with this Agreement, that contractor is a resident of Australia with a permanent establishment in Papua New Guinea,provided that if the relevant law in force in either Contracting State or in Papua New Guinea, as the case may be, at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
8.
Where:
(a) a resident of a Contracting State is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in that other State by that resident through a permanent establishment situated therein and that share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Ships and Aircraft
1.
Profits from the operation of ships or aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
2.
Notwithstanding the provisions of paragraph 1, such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
3.
The provisions of paragraphs 1 and 2 shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organization or in an international operating agency.
4.
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
ARTICLE 9 Associated Enterprises
1.
Where:
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2.
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the income to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
3.
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph 1 or 2, in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the first-mentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
1.
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
Such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed, in Papua New Guinea, 20 per cent and, in Australia, 15 per cent, of the gross amount of the dividends.
3.
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the law, relating to tax, of the Contracting State of which the company making the distribution is a resident for the purposes of its tax.
4.
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In any such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5.
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. Provided that this paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Papua New Guinea for the purposes of Papua New Guinea tax.
6.
The amount of specific gains tax imposed by Papua New Guinea in respect of the disposal by a resident of Australia of shares in a company that is a resident of Papua New Guinea shall not exceed an amount equivalent to 20 per cent of that proportion of the total dividend to which the vendor would have been entitled in respect of those shares had the company declared a dividend to the extent of its undistributed profits within the meaning of the law of Papua New Guinea relating to Papua New Guinea tax.
ARTICLE 11 Interest
1.
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3.
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to income from money lent by the law, relating to tax, of the Contracting State in which the income arises.
4.
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the indebtedness in respect of which the interest is paid is effectively connected with:
(a) such permanent establishment or fixed base; or
(b) business activities referred to in subparagraph (1)(b) of Article 7,in which case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5.
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6.
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 12 Royalties
1.
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
Such royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
3.
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 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);
(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.
4.
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the property or right in respect of which the royalties are paid or credited is effectively connected with:
(a) such permanent establishment or fixed base; or
(b) business activities referred to in subparagraph (1)(b) of Article 7,in which case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5.
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6.
Where a special relationship exists between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, and
(a) the basis on which the payment or credit is made would not commonly be found in the absence of such relationship: the amount of the royalties paid or credited may be taxed in the Contracting State in which they arise and according to the law, relating to tax, of that State, but subject to the other provisions of this Agreement; or
(b) the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship: the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of Property
1.
Income or gains derived by a resident of one of the Contracting States from the alienation of real property referred to in Article 6 and, as provided in that Article, situated in the other Contracting State may be taxed in that other State.
2.
Income or gains from the alienation of property, other than real property referred to in Article 6, that forms part of the business property of a permanent establishment which an enterprise of one of the Contracting States has in the other Contracting State or pertains to a fixed base available to a resident of the first-mentioned State in that other State for the purpose of performing independent personal services, including income or gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base, may be taxed in that other State.
3.
Income or gains from the alienation of ships or aircraft operated in international traffic, or of property (other than real property referred to in Article 6) pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise which operated those ships or aircraft is a resident.
4.
Income or gains derived by a resident of one of the Contracting States from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of real property in the other Contracting State of a kind referred to in Article 6 and, as provided in that Article, situated in that other State, may be taxed in that other State.
5.
Nothing in this Article affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of property other than that to which any of paragraphs 1, 2, 3, and 4 apply.
ARTICLE 14 Independent Personal Services
1.
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless:
(a) a fixed base is regularly available to the individual in the other Contracting State for the purpose of performing the individual's activities. If such a fixed base is available to the individual, the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base;
(b) the income is derived from a resident of that other Contracting State or a permanent establishment in that other Contracting State and exceeds an amount of $A8,000 or its equivalent in Papua New Guinea Kina in any one 12 month period. In that case so much of the income as is derived from that individual's activities in that other Contracting State may be taxed in that State; or
(c) that individual's stay in that other Contracting State exceeds 90 days in any year of income. In that case so much of the income as is derived from that individual's activities in that other Contracting State may be taxed in that State.
2.
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
1.
Subject to the provisions of Articles 16, 18, 19 and 20, salaries, wages, gratuities and other similar remuneration, including payments made in consequence of the termination of employment, derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
2.
Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 90 days in the year of income of that other State;
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State;
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State; and
(d) the remuneration is, or upon the application of this Article will be, subject to tax in the first-mentioned State.
3.
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that State.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a person who is a resident of one of the Contracting States in the person's capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers
1.
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
2.
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
ARTICLE 18 Pensions and Annuities
1.
Pensions (including government pensions) and annuities paid to a resident of one of the Contracting States shall be taxable only in that State.
2.
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
3.
Any alimony or other maintenance payment arising in one of the Contracting States and paid to a resident of the other Contracting State shall be taxable only in the first-mentioned State.
ARTICLE 19 Government Service
1.
Remuneration, other than a pension or annuity, paid by one of the Contracting States or a political subdivision or local authority of that State to any individual in respect of services rendered in the discharge of government functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen or national of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
2.
The provisions of paragraph 1 shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by one of the Contracting States or a political subdivision or local authority of that State. In such a case, the provisions of Article 15 or Article 16, as the case may be, shall apply.
ARTICLE 20 Students
Where a student, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of his or her education, receives payments from sources outside that other State for the purpose of his or her maintenance or education, those payments shall be exempt from tax in that other State.ARTICLE 21 Income Not Expressly Mentioned
1.
Items of income of a resident of one of the Contracting States which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable only in that State.
2.
However, any such income derived by a resident of one of the Contracting States from sources in the other Contracting State may also be taxed in that other State.
3.
The provisions of paragraph 1 shall not apply to income derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
ARTICLE 22 Miscellaneous
1.
Subject to the provisions of paragraph 3, income or gains derived by a resident of one of the Contracting States which, under any one or more of Articles 6 to 8, Articles 10 to 19 and Article 21, may be taxed in the other Contracting State shall for the purposes of the law of that other Contracting State relating to its tax be deemed to be income from sources in that other Contracting State.
2.
Income or gains derived by a resident of one of the Contracting States which, under any one or more of Articles 6 to 8, Articles 10 to 19 and Article 21, may be taxed in the other Contracting State shall for the purposes of Article 23 and of the law of the first-mentioned Contracting State relating to its tax be deemed to be income from sources in that other Contracting State.
3.
The provisions of paragraph 1 shall not apply in relation to interest, to which Article 11 applies and to which a resident of Australia is beneficially entitled, until such time as the law of Papua New Guinea relating to Papua New Guinea tax provides for source rules, in relation to interest, consistent with those provisions.
4.
Where a resident of one of the Contracting States derives income directly or indirectly from or in relation to fisheries activities carried on within the Protected Zone of the Torres Strait, that income may be taxed only by that State.
5.
In paragraph 4, the term "Protected Zone" has the same meaning that it has in the Treaty made between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, and signed at Sydney on 18 December 1978.
ARTICLE 23 Methods of Elimination of Double Taxation
1.
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Papua New Guinea tax paid under the law of Papua New Guinea and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Papua New Guinea shall be allowed as a credit against Australian tax payable in respect of that income.
2.
Where a company which is a resident of Papua New Guinea and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 per cent of the voting power of the first-mentioned company, the credit referred to in paragraph 1 shall include the Papua New Guinea tax paid by that first-mentioned company in respect of that portion of its profits out of which the dividend is paid.
3.
For the purpose of paragraphs 1 and 2, Papua New Guinea tax paid shall include an amount equivalent to the amount of any Papua New Guinea tax forgone.
4.
In paragraph 3, the term "Papua New Guinea tax forgone" means an amount which, under the law of Papua New Guinea relating to Papua New Guinea tax and in accordance with this Agreement, would have been payable as Papua New Guinea tax on income but for an exemption from, or a reduction of, Papua New Guinea tax on that income resulting from the operation of those provisions of the laws of Papua New Guinea which the Treasurer of Australia and the Minister for Finance and Planning of Papua New Guinea agree from time to time in letters exchanged for this purpose to be provisions to which this paragraph applies. Subject to its terms, such an agreement on applicable provisions shall be valid for as long as those provisions are not modified after the date of that agreement or have been modified only in minor respects so as not to affect their general character.
5.
Paragraph 3 and 4 shall apply only in relation to those years of income that may be agreed by the Treasurer of Australia and the Minister for Finance and Planning of Papua New Guinea in letters exchanged for this purpose.
6.
Subject to the provisions of the law of Papua New Guinea from time to time in force which relate to the allowance of a credit against Papua New Guinea tax of tax paid in a country outside Papua New Guinea (which shall not affect the general principle hereof), tax paid under the law of Australia and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Papua New Guinea for the purposes of the law of Papua New Guinea relating to Papua New Guinea tax from sources in Australia (not including, in the case of a dividend, tax paid in respect of the profits out of which the dividend is paid) shall be allowed as a credit against Papua New Guinea tax payable in respect of that income.
ARTICLE 24 Mutual Agreement Procedure
1.
Where a person who is a resident of one of the Contracting States considers that the actions of the competent authority of one or both of the Contracting States result or will result in taxation for the person not in accordance with this Agreement, the person may, notwithstanding the remedies provided by the national laws of those States, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within three years from the first notification of the action giving rise to taxation not in accordance with this Agreement.
2.
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the national laws of the Contracting States.
3.
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the application of this Agreement.
4.
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.HistoryArt 24 amended by No 121 of 1990.
ARTICLE 25 Exchange of Information
1.
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the domestic laws of the Contracting States concerning the taxes to which this Agreement applies insofar as the taxation thereunder is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
2.
In no case shall the provisions of paragraph 1 be construed so as to impose on the competent authority of a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 26 Diplomatic and Consular Officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special international agreements.ARTICLE 27 Entry into Force
This Agreement shall enter into force on the date on which the Contracting States exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in Papua New Guinea, as the case may be, and thereupon this Agreement shall have effect:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(ii) in respect of other Australian tax, in relation to income or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(b) in Papua New Guinea:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the Agreement enters into force;
(ii) in respect of other Papua New Guinea tax, in relation to income or gains of any year of income beginning on or after 1 January in the calendar year next following that in which the Agreement enters into force.ARTICLE 28 Termination
This Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in Papua New Guinea:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Papua New Guinea tax, in relation to income or gains of 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.IN WITNESS WHEREOF the undersigned, duly authorized thereto, have signed this Agreement.
DONE in duplicate at Canberra this 24th day of May, One thousand nine hundred and eighty-nine in the English language.
P.J. KEATING
FOR AUSTRALIARABBIE NAMALIU
FOR THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sch 29 inserted by No 165 of 1989. The Papua New Guinea agreement entered into force on 29 December 1989.
(Repealed by No 45 of 2011)
History
Sch 30 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Thai Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 30 formerly read:
SCHEDULE 30 - Thai Agreement
Section 3
AGREEMENT BETWEEN AUSTRALIA AND THE KINGDOM OF THAILAND FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes Covered
1.
The existing taxes to which this Agreement applies are-
(a) in the case of Thailand:
(i) the income tax; and
(ii) the petroleum income tax;
(b) in the case of Australia:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of the Commonwealth of Australia.
2.
This Agreement shall also apply to any identical or substantially similar taxes which are imposed by either Contracting State after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in their respective laws relating to the taxes to which this Agreement applies.
ARTICLE 3 General Definitions
1.
In this Agreement, unless the context otherwise requires-
(a) the term "Thailand" means the Kingdom of Thailand and includes any area adjacent to the territorial waters of the Kingdom of Thailand which by Thai legislation, and in accordance with international law, has been or may hereafter be designated as an area within which the rights of the Kingdom of Thailand with respect to the seabed and subsoil and their natural resources may be exercised;
(b)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; andand includes any area adjacent to the territorial limits of Australia or of the said Territories in respect of which there is for the time being in force, consistently with international law, a law of Australia dealing with the exploitation of any of the natural resources of the seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(c) the terms "Contracting State", "one of the Contracting States" and "the other Contracting State" mean, as the context requires, Thailand or Australia;
(d) the term "person" includes an individual, an estate, a company and any other body of persons which is treated as an entity for tax purposes;
(e) the term "company" means any body corporate or any entity which is treated as a body corporate or company under the taxation laws of the respective Contracting States;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Thailand, as the context requires;
(g) the term "tax" means Australian tax or Thai tax as the context requires;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "Thai tax" means tax imposed by Thailand, being tax to which this Agreement applies by virtue of Article 2;
(j) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or the authorized representative of the Commissioner, and in the case of Thailand, the Minister of Finance or the authorized representative of the Minister.
2.
In this Agreement, in relation to the taxes to which this Agreement applies by virtue of Article 2, the term "Australian tax" does not include any penalty or interest imposed under the law of Australia and the term "Thai tax" does not include any surcharge for late payment or any penalty imposed under the law of Thailand.
3.
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that Contracting State from time to time in force relating to the taxes to which this Agreement applies.
4.
Where under this Agreement income is relieved from tax in one of the Contracting States and, under the law in force in the other Contracting State a person, in respect of the said income, is subject to tax by reference to the amount thereof which is remitted to or received in that other State and not by reference to the full amount thereof, then the relief to be allowed under this Agreement in the firstmentioned State shall apply only to so much of the income as is remitted to or received in the other State.
ARTICLE 4 Residence
1.
For the purposes of this Agreement, a person is a resident of one of the Contracting States:
(a) in the case of Australia, if the person is a resident of Australia for the purposes of Australian tax; and
(b) in the case of Thailand, if the person is a resident of Thailand for the purposes of Thai tax.
2.
A person is not a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from a source in that State.
3.
Where by reason of the preceding provisions, an individual is a resident of both Contracting States, the status of the person shall be determined in accordance with the following rules, applied in the order in which they are set out:
(a) the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person;
(b) if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State in which the person has an habitual abode;
(c) if the person has an habitual abode in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State with which the person's personal and economic relations are the closer.
4.
For the purposes of the last preceding paragraph, an individual's citizenship or nationality of a Contracting State shall be a factor in determining the degree of the person's personal and economic relations with that Contracting State.
5.
Where by reason of the provisions of paragraph 1, a person other than an individual is a resident of both Contracting States, it shall be deemed to be a resident solely of the ContractingState in which it is incorporated, created or organized.
ARTICLE 5 Permanent Establishment
1.
For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
2.
The term "permanent establishment" shall include especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) a building site, a construction project, an installation project, an assembly project, or supervisory activities in connection therewith where such site, project or activities or any two or more of them continues or continue for more than 6 months;
(h) a warehouse in relation to a person providing storage facilities for others;
(i) the furnishing of services, including consultancy services, by a resident of one of the Contracting States through employees or other personnel, provided activities of that nature continue (for the same or a connected project) within the other Contracting State for a period or periods aggregating more than 183 days within any 12 month period;
(j) an agricultural, pastoral or forestry property.
3.
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
4.
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if substantial equipment is being used in that State by, for or under contract with the enterprise.
5.
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than a broker, general commission agent or any other agent of an independent status to whom paragraph 6 applies - shall be deemed to be a permanent establishment of that enterprise in the firstmentioned State if the person:
(a) has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise;
(b) in so acting, manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise;
(c) habitually maintains in the first mentioned State a stock of goods or merchandise belonging to the enterprise from which the person regularly fills orders on behalf of the enterprise; or
(d) habitually secures orders in the first mentioned State, wholly or almost wholly for the enterprise, or for the enterprise and other enterprises which are controlled by it or have a controlling interest in it.
6.
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of the person's business. For this purpose, an agent shall not be considered to be an agent of an independent status if the agent carries on in that other State an activity described in paragraph 5 wholly or almost wholly for the enterprise or for the enterprise and any one or more enterprises which are controlled by it or have a controlling interest in it.
7.
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise) shall not of itself make either company a permanent establishment of the other.
8.
The principles set forth in paragraphs 1 to 7 inclusive shall be applied in determining for the purposes of paragraph 5 of Article 11 and paragraph 6 of Article 12 whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
ARTICLE 6 Income from Real Property
1.
Income from real property may be taxed in the Contracting State in which the real property is situated.
2.
In 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; and
(ii) a right to receive variable or fixed payments as consideration for the exploitation of or the right to explore for or exploit, or in respect of the exploitation of, mineral deposits, oil or gas wells, quarries or other places of extraction or exploitation of natural resources; and
(b) in the case of Thailand, means immovable property according to the laws of Thailand, and shall also include:
(i) property accessory to immovable property;
(ii) rights to which the provisions of the general law respecting landed property apply;
(iii) usufruct of immovable property; and
(iv) a right to receive variable or fixed payments as consideration for the exploitation of or the right to explore for or exploit, or in respect of the exploitation of, mineral deposits, oil or gas wells, quarries or other places of extraction or exploitation of natural resources.Ships, boats and aircraft shall not be regarded as real property.
3.
A lease of land, any other interest in or over land and any right referred to in any of the subparagraphs of paragraph 2, shall be regarded as situated where the land, mineral deposits, oil or gas wells, quarries or natural resources, as the case may be, are situated, or where the exploration may take place.
4.
The provisions of paragraph 1 shall apply to income derived from the direct use, letting or use in any other form of real property.
5.
The provisions of paragraphs 1, 3 and 4 shall also apply to the income from real property of an enterprise and to income from real property used for the performance of professional services.
ARTICLE 7 Business Profits
1.
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State, but only so much of them as is attributable to:
(a) that permanent establishment; or
(b) sales within that other Contracting State of goods or merchandise of the same or a similar kind as those sold, or other business activities of the same or a similar kind as those carried on, through that permanent establishment if the sale or the business activities had been made or carried on in that way with a view to avoiding taxation in that other State.
2.
Subject to the provisions of paragraph 3, where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
3.
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
4.
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5.
If the information available to the taxation authority of a Contracting State is inadequate to determine the profits to be attributed to the permanent establishment of an enterprise, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person provided that that law shall be applied, so far as the information available to the taxation authority permits, consistently with the principles of this Article.
6.
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
7.
The profits of an enterprise of one of the Contracting States from the carrying on in the other Contracting State of a business of any form of insurance may be taxed in the other Contracting State in accordance with the law of that other State relating specifically to the taxation of any person who carries on such business, and Article 24 shall apply for the elimination of double taxation as if the profits so taxed were attributable to a permanent establishment of the enterprise in the State imposing the tax.
8.
Where:
(a) a resident of a Contracting State is beneficially entitled, whether directly or indirectly through one or more trusts, to a share of the business profits of an enterprise carried on inthe other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee has, in accordance with the principles of Article 5, a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in that other State by that resident through a permanent establishment situated therein and the resident's share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Shipping and Aircraft
1.
Income or profits from the operation of aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
2.
Income or profits from the operation of ships derived by a resident of one of the Contracting States may be taxed in that Contracting State and may also be taxed in the other State, but the tax so charged in the other State shall be reduced by an amount equal to one half of the amount which would be payable in respect of that income or those profits but for this paragraph.
3.
Notwithstanding the provisions of paragraph 1, such income or profits may be taxed in the other Contracting State, where they are income or profits from the operation of aircraft confined solely to places in that other State; and notwithstanding the provisions of paragraph 2 such income or profits may be taxed in the other Contracting State without reduction, where they are income or profits from the operation of ships confined solely to places in that other State.
4.
The provisions of paragraphs 1, 2 and 3 shall apply in relation to the share of income or profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organisation or in an international operating agency.
5.
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from the operation of ships or aircraft confined solely to places in that State.
ARTICLE 9 Associated Enterprises
1.
Where:
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2.
Notwithstanding the provisions of this Article, an enterprise of one of the Contracting States may be taxed by that State as if this Article had not come into effect but, so far as it is practicable to do so, in accordance with the principles of this Article.
3.
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph 1 or 2, in the profits of an enterprise of the other Contracting State and taxed accordingly, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first mentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the first mentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement in relation to the nature of the income, and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
1.
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
Such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident, and according to the law of that State, but, if the beneficial owner of the dividends is a company, excluding a partnership, which holds directly at least 25 per cent of the capital of the former company, the tax so charged shall not exceed:
(a) 15 per cent of the gross amount of the dividends if the company paying the dividends engages in an industrial undertaking; and
(b) 20 per cent of the gross amount of the dividends in other cases.
3.
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the taxation law of the Contracting State of which the company making the distribution is a resident.
4.
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
5.
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. However, this paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Thailand for the purposes of Thai tax.
6.
Nothing in this Agreement shall be construed as preventing one of the Contracting States from imposing, in accordance with its domestic law, a tax on profits remitted by a permanent establishment of an enterprise of the other Contracting State situated in the first mentioned Contracting State.
7.
The term "industrial undertaking" means-
(a) any undertaking engaged in:
(i) manufacturing, assembling or processing;
(ii) construction, civil engineering or shipbuilding;
(iii) production of electricity, hydraulic power or gas;
(iv) the supply of water; or
(v) agriculture, forestry or fisheries or the carrying on of a plantation;
(b) any other undertaking entitled to the privileges accorded under the laws of Thailand on the promotion of industrial investment; and
(c) any other undertaking which may be declared to be an "industrial undertaking" for the purpose of this Article by the competent authority of Thailand.
ARTICLE 11 Interest
1.
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed:
(a) 10 per cent of the gross amount of the interest if it is interest to which any financial institution (including an insurance company) is beneficially entitled; and
(b) in all other cases, 25 per cent of the gross amount of the interest.
3.
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to income from money lent by the taxation law of the Contracting State in which the income arises.
4.
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the indebtedness in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
5.
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political or administrative subdivision of that State or a local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6.
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
7.
Interest derived from the investment of official reserves by the Government of a Contracting State or by a bank performing central banking functions in a Contracting State, shall be exempt from tax in the other Contracting State.
ARTICLE 12 Royalties
1.
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
Such royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the royalties.
3.
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 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 (paragraph (a), any such equipment as is mentioned in subparagraph (paragraph (b) or any such knowledge or information as is mentioned in subparagraph (paragraph (c);
(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 of a property or right referred to in this paragraph.
4.
Income derived from the alienation of property or rights mentioned in paragraph 3 may be taxed in the Contracting State in which the income arises, but the tax so charged shall not exceed 15 per cent of the gross amount of the income.
5.
The provisions of paragraphs 1, 2 and 4 shall not apply if the person beneficially entitled to the royalties or the income mentioned in paragraph 4, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the royalties or income arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties or income are paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
6.
Royalties and the income mentioned in paragraph 4 shall be deemed to arise in a Contracting State when the payer is that State itself or a political or administrative subdivision of that State or a local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties or income, whether the person is a resident of one of the Contracting States or not has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties or income was incurred, and such royalties or income are borne by the permanent establishment or fixed base, then such royalties or income shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
7.
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties or the income mentioned in paragraph 4, or between both of them and some other person, the amount of the royalties or income paid, having regard to what they are paid for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the royalties or income paid shall remain taxable according to the law of each Contracting State, but subject to the other provisions of this Agreement.
8.
For the purposes of this Article "paid" includes credited and "payer" and "person paying" have the corresponding meanings.
ARTICLE 13 Alienation of Property
1.
Income or gains derived by a resident of a Contracting State from the alienation of real property referred to in Article 6 and, as provided in that Article, situated in the other Contracting State may be taxed in that other State.
2.
Income or gains from the alienation of property, other than real property referred to in Article 6, that forms part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or pertains to a fixed base available to a resident of the first mentioned State in that other State for the purpose of performing independent personal services, including income or gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base, may be taxed in that other State.
3.
Income or gains from the alienation of ships or aircraft operated in international traffic, or of property other than real property referred to in Article 6 pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise which operated those ships or aircraft is a resident.
4.
Income or gains derived by a resident of a Contracting State from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of real property in the other Contracting State of a kind referred to in Article 6, may be taxed in that other State.
5.
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of property other than that to which any of paragraphs 1, 2, 3 and 4 apply.
ARTICLE 14 Independent Personal Services
1.
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless the services or activities are performed in the other Contracting State. If the services or activities are so performed, such income as is derived in respect thereof may be taxed in that other State.
2.
Notwithstanding the provisions of paragraph 1, income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character performed in the other Contracting State shall be taxable only in the first mentioned State if:
(a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in the tax year or year of income, as the case may be, of that other State;
(b) the recipient does not have a fixed base available in the other State for the purpose of performing the activities of the recipient for a period or periods exceeding in the aggregate 183 days in such year; and
(c) the income is not deductible in determining taxable profits of an enterprise or a permanent establishment situated in that other State.
3.
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
1.
Subject to the provisions of Articles 16, 18, 19 and 20, salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
2.
Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the first mentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the tax year or year of income, as the case may be, of that other State;
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State.
3.
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that Contracting State.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a resident of one of the Contracting States in the capacity of the resident as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers
1.
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes, musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
2.
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
3.
Notwithstanding the provisions of Article 7, where the activities mentioned in paragraph 1 are provided in one of the Contracting States by an enterprise of the other Contracting State, the profits derived from providing these activities by such an enterprise may be taxed in the first mentioned State unless the enterprise is substantially supported by public funds of the other State, including any political subdivision, local authority or statutory body thereof, in connection with the provision of such activities.
4.
The provisions of paragraphs 1 and 2 shall not apply to income derived from activities performed in a Contracting State by entertainers if the visit to that Contracting State is substantially supported by public funds of the other Contracting State, including any political subdivision, local authority or statutory body thereof.
ARTICLE 18 Pensions and Annuities
1.
Subject to the provisions of Article 19, pensions and annuities paid to a resident of one of the Contracting States shall be taxable only in that State.
2.
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
ARTICLE 19 Government Service
1.
Remuneration (other than a pension) paid by one of the Contracting States or a political subdivision of that State or a local authority of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen or national of that other State; or
(b) did not become a resident of that other State solely for the purpose of performing the services.
2.
Any pension paid to an individual in respect of services rendered in the discharge of governmental functions to one of the Contracting States or a political subdivision of that State or a local authority of that State shall be taxable only in that State. Such pension shall, however, be taxable only in the other Contracting State if the recipient is a resident of, and a citizen or national of, that other State.
3.
The provisions of paragraphs 1 and 2 shall not apply to remuneration or a pension in respect of services rendered in connection with any trade or business carried on by one of the Contracting States or a political subdivision of one of the States or a local authority of one of the States. In such a case, the provisions of Article 15, 16 or 18, as the case may be shall apply.
ARTICLE 20 Professors and Teachers
1.
A professor or teacher who is a resident of one of the Contracting States and who visits the other Contracting State, at the invitation of any university, college, school or other similar educational institution situated in the other Contracting State and which is recognised by the competent authority of that other State, for a period not exceeding two years solely for the purpose of teaching or research or both at such educational institution shall be taxable only in the first mentioned State on any remuneration for such teaching or research.
2.
This Article shall not apply to remuneration which a professor or teacher receives for conducting research if the research is undertaken primarily for the private benefit of a specific person or persons.
ARTICLE 21 Students and Trainees
Where a student or trainee, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in the other State solely for the purpose of education or training, receives payments from sources outside the other State for the purposes of maintenance, education or training of the student or trainee, those payments shall be exempt from tax in the other State.ARTICLE 22 Income Not Expressly Mentioned
1.
Items of income of a resident of one of the Contracting States which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable only in that Contracting State.
2.
However, if such income is derived by a resident of one of the Contracting States from sources in the other Contracting State, such income may also be taxed in the Contracting State in which it arises.
3.
The provisions of paragraph 1 shall not apply to income derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
ARTICLE 23 Source of Income
Income derived by a resident of one of the Contracting States which, under any one or more of Articles 6 to 8, 10 to 17 and 22, may be taxed in the other Contracting State shall, for the purposes of Article 24 and of the income tax law of that other State, be deemed to be income from sources in that other State.ARTICLE 24 Methods of Elimination of Double Taxation
1.
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Thai tax paid under the law of Thailand and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Thailand shall be allowed as a credit against Australian tax payable in respect of that income.
2.
Where a company, which is a resident of Thailand and is not a resident of Australia for the purposes of Australian tax, pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 per cent of the voting power of the first mentioned company, the credit referred to in paragraph 1 shall include the Thai tax paid by that first mentioned company in respect of that portion of its profits out of which the dividend is paid.
3.
For the purposes of paragraphs 1 and 2, Thai tax paid shall include an amount equivalent to the amount of any tax forgone which, under the law of Thailand and in accordance with this Agreement, would have been payable as tax on income but for an exemption from, or a reduction of, tax on that income resulting from the operation of:
(a) sections 31, 33, 34, 35(2), (3), (4), or 36(4) of the Investment Promotion Act B.E. 2520 insofar as those provisions were in force on, and have not been modified since, the date of signature of this Agreement, or have been modified only in minor respects so as not to affect their general character; or
(b) any other provision which may subsequently be made granting an exemption from or reduction of tax which the authorised representatives of the Government of Australia and of the Government of the Kingdom of Thailand agree in writing to be of a substantially similar character, provided that such provisions are not modified thereafter or are modified only in minor respects so as not to affect their general character.
4.
The provisions of paragraph 3 shall apply only in relation to income derived in any of the first 10 years of income in relation to which this Agreement has effect by virtue of subparagraph (paragraph (a)(ii) of Article 28 and in any later year of income that may be agreed in an exchange of letters for this purpose by the authorised representatives of the Government of Australia and of the Government of the Kingdom of Thailand.
5.
In the case of Thailand, Australian tax payable in respect of income from sources within Australia shall be allowed as a credit against Thai tax payable in respect of that income. The credit shall not, however, exceed that part of the Thai tax, as computed before the credit is given which is appropriate to such item of income.
ARTICLE 25 Mutual Agreement Procedure
1.
Where a person who is a resident of one of the Contracting States considers that the actions of the taxation authority of one or both of the Contracting States result or will result for the person in taxation not in accordance with this Agreement, the person may, notwithstanding the remedies provided by the domestic laws of those States, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within three years from the first notification of the action.
2.
The competent authority shall endeavour, if the taxpayer's claim appears to be justified and if the competent authority is unable to arrive at an appropriate solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement.
3.
The competent authorities of the Contracting States shall jointly endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of this Agreement.
4.
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 26 Exchange of Information
1.
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the domestic laws of the Contracting States concerning the taxes to which this Agreement applies insofar as the taxation thereunder is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
2.
In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; or
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 27 Diplomatic and Consular Officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special agreements.ARTICLE 28 Entry into Force
1.
This Agreement shall enter into force upon the last of the dates on which the Contracting States have exchanged notes through the diplomatic channel indicating that the necessary procedures to give this Agreement the force of law have been completed in Australia and Thailand, as the case may be, and thereupon the Agreement shall have effect-
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the notes are exchanged;
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year next following that in which the notes are exchanged;
(b) in Thailand:
(i) in respect of withholding taxes, on income derived by a non-resident on or after 1 January in the calendar year next following that in which the notes are exchanged;
(ii) in respect of other taxes, on income of the calendar years or accounting periods beginning on or after 1 January in the calendar year next following that in which the notes are exchanged.
ARTICLE 29 Termination
This Agreement shall continue in effect indefinitely, but either of the Contracting States, may, on or before 30 June in any calendar year after the fifth year following that in which the Agreement entered into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to have effect-
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in Thailand:
(i) in respect of withholding taxes, on income derived by a non-resident on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other taxes, on income of the calendar years or accounting periods beginning on or after 1 January in the calendar year next following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, being duly authorized, have signed this Agreement.
DONE in duplicate at Canberra this 31st day of August One thousand nine hundred and eighty-nine in the English and Thai languages, each text being equally authentic.
P.J. KEATING
FOR AUSTRALIASUBIN PINKAYAN
FOR THE KINGDOM OF THAILAND
Sch 30 inserted by No 165 of 1989. The Thai agreement entered into force on 27 December 1989.
(Repealed by No 45 of 2011)
History
Sch 31 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Sri Lankan Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 31 formerly read:
SCHEDULE 31 - Sri Lankan Agreement
Section 3
AGREEMENT BETWEEN AUSTRALIA AND THE DEMOCRATIC SOCIALIST REPUBLIC OF SRI LANKA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Agreement shall apply are:
(a) in Australia:
(i) the income tax; andimposed under the federal law of the Commonwealth of Australia;
(ii) the tax in respect of profits from offshore petroleum projects,
(b) in Sri Lanka:
the income tax, including the income tax based on the turnover of enterprises licensed by the Greater Colombo Economic Commission.
(2)
This Agreement shall also apply to any identical or substantially similar taxes which are imposed under the federal law of the Commonwealth of Australia or the law of the Democratic Socialist Republic of Sri Lanka after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in the laws of their respective States relating to the taxes to which this Agreement applies.
ARTICLE 3 General 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; andand 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 exploitation of any of the natural resources of the sea-bed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "Sri Lanka" means the Democratic Socialist Republic of Sri Lanka, including any area outside the territorial sea of Sri Lanka which in accordance with international law has been or may hereafter be designated, under the laws of Sri Lanka concerning the Continental Shelf, as an area within which the rights of Sri Lanka with respect to the waters, sea-bed and subsoil and the natural resources may be exercised;
(c) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" mean Australia or Sri Lanka, as the context requires;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Sri Lanka, as the context requires;
(g) the term "tax" means Australian tax or Sri Lanka tax, as the context requires;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "Sri Lanka tax" means tax imposed by Sri Lanka, being tax to which this Agreement applies by virtue of Article 2;
(j) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or an authorized representative of the Commissioner and, in the case of Sri Lanka, the Commissioner General of Inland Revenue.
(2)
In this Agreement, the terms "Australian tax" and "Sri Lanka tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes to which this Agreement applies by virtue of Article 2.
(3)
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State from time to time in force relating to the taxes to which this Agreement applies.
ARTICLE 4 Residence
(1)
For the purposes of this Agreement, a person is a resident of one of the Contracting States if that person is a resident of that State for the purposes of its tax.
(2)
A person shall not be treated as a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
(3)
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the status of the person shall be determined in accordance with the following rules:
(a) the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person;
(b) if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State in which the person has an habitual abode;
(c) if the person has an habitual abode in both Contracting States or does not have an habitual abode in either of them, the person shall be deemed to be a resident solely of the Contracting State with which his or her personal and economic relations are the closer.
(4)
In determining for the purposes of paragraph (3) the Contracting State with which an individual's personal and economic relations are the closer, the matters to which regard may be had shall include the citizenship of the individual.
(5)
Where by reason of the provisions of paragraph (1), a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Agreement, the term "permanent establishment", in relation to an enterprise, means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property.
(3)
The term "permanent establishment" likewise encompasses:
(a) a building site, construction, assembly or installation project, or an installation or drilling rig or ship used for the exploration for or development of natural resources, including supervisory activities in connection therewith rendered by the same person only if that site, project or use continues or those activities continue for more than 183 days;
(b) the furnishing of services, including consultancy services, in one of the Contracting States by an enterprise through employees or other personnel engaged by the enterprise for such purposes, but only where activities of that nature continue (for the same or a connected project)within that Contracting State for a period or periods aggregating more than 183 days within any twelve month period.
(4)
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if substantial equipment is being used in that State by, for or under contract with the enterprise.
(5)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (7) applies - shall be deemed to be a permanent establishment of that enterprise in the first-mentioned State if:
(a) the person has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise;
(b) the person has no such authority, but habitually maintains in the first-mentioned State a stock of goods or merchandise from which he or she regularly delivers goods or merchandise on behalf of the enterprise;
(c) in so acting, the person manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise;
(d) the person's activities consist wholly or principally of securing orders in the first-mentioned State for the enterprise or for the enterprise and other enterprises which are controlled by it or have a controlling interest in it.
(6)
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or occasional delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or occasional delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(7)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a person who is a broker, general commission agent or any other agent of an independent status and is acting in the ordinary course of the person's business as such a broker or agent.
(8)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
(9)
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph (5) of Article 11 and paragraph (5) of Article 12 whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
ARTICLE 6 Income from Real Property
(1)
Income from real property 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 include:
(i) a lease of land and any other interest in or over land, whether improved or not; and
(ii) a right to receive variable or fixed payments either as consideration for the working of or the right to work or explore for, or in respect of exploitation of, mineral deposits, oil and gas wells, quarries or other places of extraction or exploitation of natural resources; and
(b) in the case of Sri Lanka, means such property which, according to the laws of Sri Lanka, is immovable property and shall include:
(i) property accessory to immovable property;
(ii) rights to which the provisions of the general law respecting landed property apply; and
(iii) 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 real property.
(3)
A lease of land, any other interest in or over land and any rights or property referred to in any of the subparagraphs of paragraph (2) shall be regarded as situated where the land, mineral deposits, mineral sources, oil or gas wells, quarries, natural resources or property, as the case may be, are situated.
(4)
Theprovisions of paragraph (1) shall apply to income derived from the direct use, letting or use in any other form of real property.
(5)
The provisions of paragraphs (1), (3) and (4) shall also apply to the income from real property of an enterprise and to income from real property used for the performance of independent personal services.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid the profits of the enterprise may be taxed in the other State, but only so much of them as is attributable to:
(a) that permanent establishment; or
(b) sales within that other Contracting State of goods or merchandise of the same or a similar kind as those sold, or other business activities of the same or a similar kind as those carried on, through that permanent establishment if the sales or the business activities had been made or carried on in that way with a view to avoiding taxation in that other State.
(2)
Subject to the provisions of paragraph (3), where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions, in accordance with the law relating to tax in the Contracting State in which the permanent establishment is situated, expenses which are incurred for the purposes of the business of the permanent establishment (including executive and general administrative expenses so incurred), whether in the State in which the permanent establishment is situated or elsewhere. No such deduction shall be allowed in respect of any amounts paid (otherwise than towards reimbursement of actual expenses) by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission, for specific services performed or for management, or by way of interest on moneys lent to the permanent establishment. Likewise, no account shall be taken, in the determination of the profits of a permanent establishment, of amounts charged (otherwise than towards reimbursement of actual expenses) by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission, for specific services performed or for management.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
(6)
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
(7)
For the purposes of the preceding paragraphs, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.
(8)
Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits from insurance with non-residents provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(9)
Where:
(a) a resident of Sri Lanka is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in Australia by the trustee of a trust estate other than a trust estate that is treated in Australia as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in Australia,the enterprise carried on by the trustee shall be deemed to be a business carried on in Australia by that resident through a permanent establishment situated therein and that share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Ships and Aircraft
(1)
Profits from the operation of ships or aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1), such profits may be taxed in the other Contracting State where:
(a) they are profits from operations of ships or aircraft confined solely to places in that other State; or
(b) they are profits, other than profits to which subparagraph (a) applies, from operations of ships in that other State, in which case the tax payable in that other State shall not exceed the lesser of:
(i) half the amount which would be payable in respect of those profits but for this subparagraph; and
(ii) the lowest amount, if any, of Sri Lanka tax that may be imposed on profits of the same kind derived under similar circumstances by a resident of a third State.
(3)
The provisions of paragraphs (1) and (2) shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organisation or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
ARTICLE 9 Associated Enterprises
(1)
Where:
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the income to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
(3)
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph (1) or (2), in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the first-mentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends.
(3)
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the law, relating to tax, of the Contracting State of which the company making the distribution is a resident for the purposes of its tax.
(4)
The provisions of paragraph (2) shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In any such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. Provided that this paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Sri Lanka for the purposes of Sri Lanka tax.
ARTICLE 11 Interest
(1)
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to income from money lent by the law, relating to tax, of the Contracting State in which the income arises.
(4)
The provisions of paragraph (2) shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the indebtedness in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 12 Royalties
(1)
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
(3)
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 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);
(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.
(4)
The provisions of paragraph (2) shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the property or right in respect of which the royalties are paid or credited is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of Property
(1)
Income or gains derived by a resident of one of the Contracting States from the alienation of real property referred to in Article 6 and, as provided in that Article, situated in the other Contracting State, may be taxed in that other State.
(2)
Income or gains from the alienation of property, other than real property referred to in Article 6, that forms part of the business property of a permanent establishment which an enterprise of one of the Contracting States has in the other Contracting State or pertains to a fixed base available to a resident of the first-mentioned State in that other State for the purpose of performing independent personal services, including income or gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base, may be taxed in that other State.
(3)
Income or gains from the alienation of ships or aircraft operated in international traffic, or of property other than real property referred to in Article 6 pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise which operated those ships or aircraft is a resident.
(4)
Income or gains derived by a resident of one of the Contracting States from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of real property in the other Contracting State of a kind referred to in Article 6, may be taxed in that other State.
(5)
Gains of a capital nature derived by a resident of one of the Contracting States from the alienation of any property other than that referred to in paragraphs (1) to (4) inclusive may be taxed in the other Contracting State according to the laws of that other State relating to its tax.
ARTICLE 14 Independent Personal Services
(1)
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State. However if that individual:
(a) has a fixed base regularly available in the other Contracting State for the purpose of performing those activities; or
(b) in a year of income or year of assessment, as the case may be, is present in that other Contracting State for a period or periods amounting to or exceeding 183 days,so much of the income derived by the individual as is attributable to those activities may be taxed in that other State.
(2)
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 18 and 19 salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the year of income or in the year of assessment, as the case may be, of that other State;
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that State.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a person who is a resident of one of the Contracting States in the person's capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes, or musicians, or athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
(2)
Where income in respect of personal activities exercised by an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
(3)
Notwithstanding the provisions of paragraph (1), income derived by an entertainer from his or her personal activities as such in one of the Contracting States shall be taxable only in the other Contracting State if those activities in the first-mentioned State are supported substantially from the public funds of that other State or of one of its political subdivisions or local authorities.
(4)
Notwithstanding the provisions of paragraph (2) and Articles 7, 14 and 15, where income in respect of personal activities exercised by an entertainer as such in one of the Contracting States accrues not to that entertainer but to another person, that income shall be taxable only in the other Contracting State if that other person is supported substantially from the public funds of that other State or of one of its political subdivisions or local authorities, or if that person is a non-profit organisation of that other State.
ARTICLE 18 Pensions and Annuities
(1)
Pensions (other than pensions to which Article 19 applies) and annuities paid to a resident of one of the Contracting States shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
(3)
Any alimony or other maintenance payment arising in one of the Contracting States and paid to a resident of the other Contracting State shall be taxable only in the first-mentioned State.
ARTICLE 19 Government Service
(1)
Remuneration, other than a pension or annuity, paid by one of the Contracting States or a political subdivision or local authority of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen or national of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
(2)
(a) Any pension paid by, or out of funds created by, one of the Contracting States or a political subdivision or local authority of that State to an individual in respect of services rendered to that State or subdivision 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 citizen or national of, that other State.
(3)
The provisions of Articles 15, 16 and 18 shall apply to remuneration and pensions in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or local authority of that Contracting State.
ARTICLE 20 Students
Where a student, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of his or her education, receives payments from sources outside that other State for the purpose of his or her maintenance or education, those payments shall be exempt from tax in that other State.ARTICLE 21 Income Not Expressly Mentioned
(1)
Items of income of a resident of one of the Contracting States which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable only in that State.
(2)
However, any such income derived by a resident of one of the Contracting States from sources in the other Contracting State may also be taxed in that other State.
(3)
The provisions of paragraph (1) shall not apply to income derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
ARTICLE 22 Source of Income
(1)
Income derived by a resident of Sri Lanka which, under any one or more of Articles 6 to 8, Articles 10 to 19 and Article 21, may be taxed in Australia shall for the purposes of the law of Australia relating to Australian tax be deemed to be income from sources in Australia.
(2)
Profits, income or gains derived by a resident of Australia which, under any one or more of Articles 6 to 8, Articles 10 to 19 and Article 21, may be taxed in Sri Lanka shall for the purposes of paragraph (1) of Article 23 and of the law of Australia relating to Australian tax be deemed to be income from sources in Sri Lanka.
ARTICLE 23 Methods of Elimination of Double Taxation
(1)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Sri Lanka tax paid under the law of Sri Lanka and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Sri Lanka (including, in the case of a dividend paid by a company which is a resident of Sri Lanka and is not a resident of Australia to a company which is a resident of Australia and which controls directly or indirectly at least 10 per cent of the voting power of the first-mentioned company, the Sri Lanka tax paid by the company in respect of profits out of which the dividend is paid) shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
(a) For the purposes of paragraph (1), Sri Lanka tax paid shall include an amount equivalent to the amount of any Sri Lanka tax forgone.
(b) For the purposes of the law of Australia relating to Australian tax, an amount of income referred to inparagraph (3) shall be increased by the amount of any Sri Lanka tax forgone in respect of that income.
(3)
For the purposes of paragraph (2), the term "Sri Lanka tax forgone" means an amount which, under the laws of Sri Lanka and in accordance with this Agreement, would have been payable as Sri Lanka tax on income but for any exemption from, or reduction of, Sri Lanka tax on that income in accordance with those provisions of the law of Sri Lanka relating to Sri Lanka tax which are agreed in letters exchanged from time to time between the Treasurer of Australia and the Minister of Finance and Planning of Sri Lanka for the purposes of this paragraph.
(4)
Paragraphs (2) and (3) shall apply only in relation to income derived in the first five years of income in relation to which this Agreement has effect by virtue of subparagraph (a)(ii) of Article 27 and in any later years of income that may be agreed by the Contracting States in letters exchanged for this purpose.
(5)
Subject to the provisions of the law of Sri Lanka regarding the allowance as a credit against Sri Lanka tax of tax payable in a country outside Sri Lanka (which shall not affect the general principle hereof), Australian tax payable under the law of Australia and in accordance with this Agreement, whether directly or by deduction, on income derived by a person who is a resident of Sri Lanka from sources within Australia shall be allowed as a credit against any Sri Lanka tax payable on such income, such tax being an amount computed before the credit is given. Where such income is a dividend paid by a company which is a resident of Australia to a company which is a resident of Sri Lanka and which owns not less than 10 per cent of the voting shares of the company paying the dividend, the credit shall take into account Australian tax payable by that company in respect of its income out of which the dividend is paid.
(6)
Where a resident of one of the Contracting States derives income which, in accordance with the provisions of this Agreement shall be taxable only in the other Contracting State, the first-mentioned State may take that income into account in calculating the amount of its tax payable on the remaining income of that resident.
ARTICLE 24 Mutual Agreement Procedure
(1)
Where a person who is a resident of one of the Contracting States considers that the actions of the competent authority of one or both of the Contracting States result or will result for the person in taxation not in accordance with this Agreement, the person may, notwithstanding the remedies provided by the national laws of those States, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within three years from the first notification of the action giving rise to taxation not in accordance with this Agreement.
(2)
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the national laws of the Contracting States.
(3)
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the application of this Agreement.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 25 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the domestic laws of the Contracting States concerning the taxes to which this Agreement applies insofar as the taxation thereunder is not contrary to this Agreement, as well as to prevent fiscal evasion in relation to such taxes. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
(2)
In no case shall the provisions of paragraph (1) be construed so as to impose on the competent authority of a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 26 Diplomatic and Consular Officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special international agreements.ARTICLE 27 Entry into Force
(1)
This Agreement shall enter into force on the date on which the Contracting States exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in Sri Lanka, as the case may be, and thereupon this Agreement shall have effect:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year next following that in which the Agreement enters into force.
(b) in Sri Lanka:
in respect of income assessable for any year of assessment commencing on or after 1 April in the calendar year next following that in which the Agreement enters into force.
ARTICLE 28 Termination
This Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in Sri Lanka:
in respect of income assessable for any year of assessment commencing on or after 1 April in the calendar year next following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.
DONE in duplicate at Canberra on this eighteenth day of December, One thousand nine hundred and eighty nine in the English and Sinhala languages, both texts being equally authentic.
FOR AUSTRALIA:
PAUL KEATINGFOR SRI LANKA:
WICKREMA WEERASOORIA
[ CCH Note: NOTE ABOUT RECTIFICATION OF THE SRI LANKAN AGREEMENT
1. In an exchange of Notes dated 9 and 14 August 1990, the Government of Australia and the Government of the Democratic Socialist Republic of Sri Lanka agreed to regard the text of the English language alternate of the Sri Lankan agreement as rectified ab initio as follows:
In Article 3(1)(a), adding a line between the Coral Sea Islands Territory, and the passage of words beginning and includes any area and ending with the continental shelf; in Article 3(1)(a)(vi), so that the passage of words becomes a part of Article 3(1)(a) and is no longer a part of Article 3(1)(a)(vi);
In Article 6(2), reducing the indent of the last sentence so that the sentence becomes part of Article 6(2) and is no longer a part of Article 6(2)(b);
In Article 15(2)(b) inserting the word and after State ; in the last line of the subparagraph; and
In Article 17(1) inserting a comma after the word theatrical in line 2 of the subparagraph.
2. These rectifications have been incorporated in the text of the copy of the agreement that is set out in this Act. (The line references relate to the original text of the agreement.)]
Sch 31 inserted by No 121 of 1990. The Sri Lankan agreement entered into force on 21 October 1991.
(Repealed by No 45 of 2011)
History
Sch 32 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Fijian Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 32 formerly read:
SCHEDULE 32 - Fijian Agreement
Section 3
AGREEMENT BETWEEN AUSTRALIA AND FIJI FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Agreement shall apply are:
(a) in Australia:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of the Commonwealth of Australia; and
(b) in Fiji:
the income tax (including basic tax and normal tax, the non-resident dividend withholding tax, the interest withholding tax, the royalty withholding tax and the dividend tax) and the land sales tax.
(2)
This Agreement shall also apply to any identical or substantially similar taxes which are imposed under the federal law of the Commonwealth of Australia or the law of Fiji after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in the laws of their respective States relating to the taxes to which the Agreement applies, within a reasonable period of time after those changes.
ARTICLE 3 General Definitions
(1)
In 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; andand 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 exploitation of any of the natural resources of the seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "Fiji" means the Islands of Fiji, including the Island of Rotuma and its dependencies, and includes all areas of water which, consistently with international law, have been, or may after the date of this Agreement be, designated under the laws of Fiji as areas over which the sovereignty of Fiji may be exercised with respect to the sea, the seabed and its subsoil and the natural resources thereof;
(c) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" mean Australia or Fiji, as the context requires;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is treated as a company for tax purposes;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Fiji, as the context requires;
(g) the term "tax" means Australian tax or Fiji tax, as the context requires;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "Fiji tax" means tax imposed by Fiji, being tax to which this Agreement applies by virtue of Article 2; and
(j) 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 Fiji, the Commissioner of Inland Revenue or an authorised representative of the Commissioner.
(2)
In this Agreement, the terms "Australian tax" and "Fiji tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes to which this Agreement applies by virtue of Article 2.
(3)
In the application of the provisions of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State from time to time in force relating to the taxes to which this Agreement applies by virtue of Article 2.
(4)
In determining, for the purposes of Article 10, 11 or 12, whether dividends, interest or royalties are beneficially owned by a resident of one of the Contracting States, dividends, interest or royalties derived by a trustee during a year of income in respect of which the trustee is subject to tax in that State shall be treated as being beneficially owned by that trustee to the extent to which, as at the end of the year of income, residents of that State had any interest, whether vested or contingent, in that income and no person other than residents of that State could, by the exercise of a power conferred on any person, obtain such an interest.
ARTICLE 4 Residence
(1)
For the purposes of this Agreement, a person is a resident of one of the Contracting States:
(a) in the case of Australia, subject to the provisions of paragraph (2), if the person is a resident of Australia for the purposes of Australian tax; and
(b) in the case of Fiji, if the person is a resident of Fiji for the purposes of Fiji tax.
(2)
A person is not a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
(3)
Where by reason of the preceding provisions of this Article an individual is a resident of both Contracting States, then the status of that person shall be determined in accordance with the following rules:
(a) the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person;
(b) if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State in which the person has an habitual abode; and
(c) if the person has an habitual abode in both Contracting States or does not have an habitual abode in either of them, the person shall be deemed to be a resident solely of the Contracting State with which the person's personal and economic relations are the closer.
(4)
In determining for the purposes of paragraph (3) the Contracting State with which an individual's personal and economic relations are the closer, the matters to which regard may be had shall include the citizenship of the individual.
(5)
Where by reason of the provisions of paragraph (1) a person other than an individual is a resident of both Contracting States, then the person's status shall be determined as follows:
(a) it shall be deemed to be a resident of the Contracting State in which it is incorporated or otherwise constituted; and
(b) if it is not incorporated or otherwise constituted in either of the Contracting States, it shall be deemed to be a resident of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" includes especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property; and
(h) a building site or construction, installation or assembly project which exists for more than six months.
(3)
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise; or
(d) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(4)
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if:
(a) it carries on supervisory activities in that State for more than six months in connection with a building site, or a construction, installation or assembly project which is being undertaken in that State;
(b) substantial equipment is being used or installed in that State by, for or under contract with the enterprise; or
(c) it furnishes services, including consultancy services, through employees or other personnel engaged by it for such purpose, but only where activities of that nature continue within that State for a period or periods aggregating more than six months within any twelve month period.
(5)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (6) applies - shall be deemed to be a permanent establishment of that enterprise in the firstmentioned State if:
(a) the person has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise;
(b) there is maintained in that State a stock of goods or merchandise belonging to the enterprise from which the person habitually fills orders on behalf of the enterprise; or
(c) in so acting, the person manufactures or processes in that Contracting State for the enterprise goods or merchandise belonging to the enterprise.
(6)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a person who is a broker, general commission agent or any other agent of an independent status and is acting in the ordinary course of the person's business as such a broker or agent.
(7)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
(8)
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph (5) of Article 11 and paragraph (5) of Article 12 whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
ARTICLE 6 Income from Real Property
(1)
Income from real property may be taxed in the Contracting State in which the real property is situated.
(2)
In this Article, the term "real property", in relation to one of the Contracting States, has the meaning which it has under the laws of that State and also includes:
(a) a lease of land and any other interest in or over land whether improved or not; and
(b) a right to receive variable or fixed payments either as consideration for the exploitation of or the right to explore for or exploit, or in respect of the exploitation of, standing timber or any mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources.
(3)
Any interest or right referred to in paragraph (2) shall be regarded as situated where the land, standing timber, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
(4)
The provisions of paragraphs (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 professional services.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of one of the Contracting States shall be taxable only in that Contracting State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other Contracting State, but only so much of them as is attributable to:
(a) that permanent establishment; or
(b) sales within that other State of goods or merchandise of the same or a similar kind as those sold, or other business activities of the same or a similar kind as those carried on, through that permanent establishment, if the sale or the business activities had been made or carried on in that way with a view to avoiding taxation in that other State.
(2)
Subject to the provisions of paragraph (3), where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
If the information available to the competent authority of a Contracting State is inadequate to determine the profits to be attributed to the permanent establishment of an enterprise, nothing in this Article shall affect the application of any law of that Contracting State relating to the determination of the tax liability of a person, provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
(6)
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
(7)
Nothing in this Article shall affect the operation of any law of a Contracting State relating to taxation of profits from insurance with non-residents provided that, if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character), the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(8)
Where:
(a) a resident of a Contracting State is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b)in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in Australia,the enterprise carried on by the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated therein and that share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Shipping and Air Transport
(1)
Profits from the operation of ships or aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1), such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
(3)
The provisions of paragraphs (1) and (2) shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organisation or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
ARTICLE 9 Associated Enterprises
(1)
Where:
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
If the information available to the competent authority of a Contracting State is inadequate to determine the profits to be attributed to an enterprise, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person, provided that that law shall be applied, so far as the information available to the competent authority permits, in accordance with the principles of this Article.
(3)
Notwithstanding the provisions of this Article, an enterprise of one of the Contracting States may be taxed by that State as if this Article had not come into effect, so far as it is practicable to do so, in accordance with the principles of this Article.
(4)
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph (1), (2) or (3), in the profits of an enterprise of the other Contracting State and taxed accordingly, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the firstmentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the firstmentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
(5)
The provisions of paragraph (4) relating to an appropriate adjustment are not applicable after the expiration of six years from the end of the year of assessment or year of tax in respect of which a Contracting State has charged to tax the profits to which the adjustment would relate.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed 20 per cent of the gross amount of the dividends.
(3)
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the law, relating to tax, of the Contracting State of which the company making the distribution is a resident for the purposes of its tax.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. Provided that this paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Fiji for the purposes of Fiji tax.
(6)
Nothing in this Agreement shall be construed as preventing one of the Contracting States from imposing, on the income of a company which is a resident of the other Contracting State, tax in addition to the taxes referred to in Article 2 in relation to the firstmentioned State which are payable by a company which is a resident of the firstmentioned State, provided that any such additional tax shall not exceed 20 per cent of the amount by which the taxable income of the firstmentioned company of a year of income exceeds the tax payable on that taxable income to the firstmentioned State. Any tax payable to one of the Contracting States on the undistributed profits of a company which is a resident of the other Contracting State shall be calculated as if that company were not liable to the additional tax referred to in this paragraph and had paid dividends of such amount that tax equal to the amount of the additional tax would have been payable on the dividends in accordance with paragraph (2).
ARTICLE 11 Interest
(1)
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to income from money lent by the law, relating to tax, of the Contracting State in which the income arises.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated therein, or performs in that other Contracting State independent personal services from a fixed base situated therein, and the indebtedness in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 12 Royalties
(1)
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the royalties.
(3)
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 (including agricultural), commercial or scientific equipment;
(c) the supply of scientific, technical, industrial (including agricultural) or commercial knowledge or information;
(d) the supply of any assistance that is ancillary and subsidiary to, and is furnished as a means of enabling the application or enjoyment of, any such property or right of the kinds 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);
(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;
(f) the supply by a resident of one of the Contracting States of management services in the other Contracting State; or
(g) total or partial forbearance in respect of the use of a property or right referred to in this paragraph.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the royalties are paid or credited is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of Property
(1)
Income, profits or gains derived by a resident of one of the Contracting States from the alienation of real property as defined in Article 6 and, as provided in that Article, situated in the other Contracting State may be taxed in that other State.
(2)
Income, profits or gains from the alienation of property, other than real property as defined in Article 6, that forms part of the business property of a permanent establishment which an enterprise of one of the Contracting States has in the other Contracting State, including income, profits or gains from the alienation of such a permanent establishment (alone or with the whole enterprise), may be taxed in that other State.
(3)
Income, profits or gains from the alienation of ships or aircraft operated in international traffic, or of property other than real property as defined in Article 6 pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise which operated those ships or aircraft is a resident.
(4)
Income, profits or gains derived by a resident of one of the Contracting States from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of real property as defined in Article 6 in the other Contracting State, may be taxed in that other State.
(5)
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of profits or gains of a capital nature derived from the alienation of property other than that to which any of paragraphs (1), (2), (3) and (4) apply.
ARTICLE 14 Independent Personal Services
(1)
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State. However if such an individual:
(a) has a fixed base regularly available to the individual in the other Contracting State for the purpose of performing the individual's activities;
(b) in a year of income, stays in that other Contracting State for a period or periods aggregating 183 days or more for the purpose of performing the individual's activities; or
(c) in a year of income, derives gross remuneration (including expenses reimbursed to or borne on behalf of the individual or the value of any benefit provided in connection with those services or activities) in respect of the individual's activities in that other State, that is paid by a resident of that other State or is deductible in determining taxable profits of a permanent establishment or a fixed base situated in that other State and that exceeds eight thousand Australian dollars or its equivalent in Fijian dollars,so much of the income derived by the individual as is attributable to activities so performed may be taxed in that other State.
(2)
The Treasurer of Australia and the Minister of Finance of Fiji may agree in letters exchanged for the purpose to variations in the amount specified in subparagraph (1)(c) and any variations so agreed shall have effect according to the tenor of the letters.
(3)
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities, as well as in the exercise of independent activities of physicians, lawyers, engineers, architects, dentists and accountants.HistoryArt 14 amended by No 35 of 1992.
ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 18, 19 and 20, salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the firstmentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 90 days in the year of income of that other State; and
(b) the remuneration is, or upon the application of this Article will be, subject to tax in the firstmentioned State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that State.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a resident of one of the Contracting States as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which those activities are exercised.
(2)
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
(3)
The provisions of paragraphs (1) and (2) shall not apply to income derived from activities exercised in one of the Contracting States by entertainers if the visit to that State is wholly or substantially supported by public funds of the other Contracting State, or a political subdivision, local authority or statutory body thereof.
ARTICLE 18 Pensions and Annuities
(1)
Pensions (other than pensions to which Article 19 applies) and annuities paid to a resident of one of the Contracting States shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
(3)
Any alimony or other maintenance payment arising in one of the Contracting States and paid to a resident of the other Contracting State shall be taxable only in the firstmentioned State.
ARTICLE 19 Government Service
(1)
Remuneration (including a pension or annuity) paid by one of the Contracting States or a political subdivision or local authority of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration, not being a pension or annuity, shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
(2)
The provisions of paragraph (1) shall not apply to remuneration, including a pension or annuity, in respect of services rendered in connection with any trade or business carried on by one of the Contracting States or a political subdivision or local authority of that State. In such a case, the provisions of Article 15, 16 or 18, as the case may be, shall apply.
ARTICLE 20 Professors and Teachers
(1)
Remuneration which a professor or teacher who is a resident of one of the Contracting States and who visits the other Contracting State for a period not exceeding two years for the purpose of teaching or carrying out advanced study or research at a university, college, school or other educational institution, receives for those activities shall be taxable only in the firstmentioned State.
(2)
This Article shall not apply to remuneration which a professor or teacher receives for conducting research if the research is undertaken primarily for the private benefit of a specific person or persons.
ARTICLE 21 Australian Government's Bilateral Aid to Fiji
Notwithstanding anything elsewhere in this Agreement, income derived by any person from the participation in any capacity whatsoever of that person in the Australian Government's Bilateral Aid Program to Fiji shall be exempt from Fiji tax if:
(a) that person is not a resident of Fiji for the purposes of Fiji tax, or is a resident of Fiji for the purposes of Fiji tax solely for the purpose of such participation; and
(b) that income is derived from the aid fund and is, or upon the application of this Article will be, subject to tax in Australia.ARTICLE 22 Students and Trainees
Where a student or trainee, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of his or her education or training, receives payments from sources outside that other State for the purpose of the student's or trainee's maintenance, education or training, those payments shall be exempt from tax in that other State.ARTICLE 23 Income Not Expressly Mentioned
(1)
Items of income of a resident of one of the Contracting States which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable only in that State.
(2)
However, any such income derived by a resident of one of the Contracting States from sources in the other Contracting State may also be taxed in that other State.
(3)
The provisions of paragraph (1) shall not apply to income derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In such a case, the provisions of Article 7 or 14, as the case may be, shall apply.
ARTICLE 24 Source of Income
(1)
Profits, income or gains derived by a resident of one of the Contracting States which, under any one or more of Articles 6 to 8 and 10 to 19 and Article 23 may be taxed in the other Contracting State, shall for the purposes of the law, relating to tax, of that other Contracting State be deemed to be income from sources in that other State.
(2)
Profits, income or gains derived by a resident of one of the Contracting States which, under any one or more of Articles 6 to 8, 10 to 19 and Article 23 may be taxed in the other Contracting State, shall for the purposes of Article 25 and of the law, relating to tax, of the firstmentioned State be deemed to be income from sources in the other State.
ARTICLE 25 Elimination of Double Taxation
(1)
Subject to any provisions of the law of Fiji which may from time to time be in force and which relate to the allowance of a credit against Fiji tax of tax paid in a country outside Fiji (which shall not affect the general principle hereof), Australian tax paid under the law of Australia and consistently with this Agreement, whether directly or by deduction, in respect of income derived by a resident of Fiji from sources in Australia shall be allowed as a credit against Fiji tax payable in respect of that income.
(2)
(a) Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Fiji tax paid under the law of Fiji and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Fiji shall be allowed as a credit against Australian tax payable in respect of that income.
(b) Where a company which is a resident of Fiji and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 per cent of the voting power of the firstmentioned company, the credit referred to in paragraph (1) shall include the tax paid by the firstmentioned company in respect of that portion of its profits out of which the dividend is paid.
(3)
For the purposes of paragraph (2), Fiji tax paid shall include an amount equivalent to the amount of any tax forgone which, under the law of Fiji and in accordance with this Agreement, would have been payable as tax on income but for an exemption from, or a reduction of, tax on that income resulting from the operation of:
(a)
(i) subsection 8(1) of the Hotels Aid Act 1964 (Cap. 215); or
(ii) paragraph 8(6)(c), paragraph 9(3)(h), subsection 10A(6), paragraph (a), (b), (d) or (f) of subsection 16(2) or subsection 16(4) or (5) of the Income Tax Act 1974, insofar as those provisions were in force on, and have not been modified since, the date of signature of this Agreement, or have been modified only in minor respects so as not to affect their general character; or
(b) any other provision which may subsequently be made granting an exemption from or reduction of tax which the authorised representatives of the Governments of Australia and Fiji agree in writing to be of a substantially similar character, provided that such provisions are not modified there after or are modified only in minor respects so as not to affect their general character.
(4)
The provisions of paragraph (3) shall apply only in relation to income derived in any of the first five years of income in relation to which this Agreement has effect by virtue of subparagraph (a)(ii) of Article 29 and in any later year of income that may be agreed in an exchange of letters for this purpose by the authorised representatives of the Governments of Australia and Fiji.
ARTICLE 26 Mutual Agreement Procedure
(1)
Where a person who is a resident of one of the Contracting States considers that the actions of the competent authority of one or both of the Contracting States result or will result for the person in taxation not in accordance with this Agreement, the person may, notwithstanding the remedies provided by the national laws of those States, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within three years from the first notification of the action giving rise to taxation not in accordance with this Agreement.
(2)
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement.
(3)
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the application of this Agreement.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 27 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the domestic laws of the Contracting States concerning the taxes to which this Agreement applies insofar as the taxation thereunder is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
(2)
In no case shall the provisions of paragraph (1) be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 28 Diplomatic and Consular Officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special international agreements.ARTICLE 29 Entry into Force
This Agreement shall enter into force on the date on which the Contracting States exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in Fiji, as the case may be, and thereupon this Agreement shall have effect:
(a) in Australia:
(i) in relation to withholding tax on income that is derived by a non-resident, in respect of income derived on or after 1 January in the calendar year immediately following that in which the Agreement enters into force;
(ii) in relation to other Australian tax, in respect of income, profits or gains of any year of income beginning on or after 1 July in the calendar year immediately following that in which the Agreement enters into force;
(b) in Fiji:
in relation to Fiji tax, in respect of income, profits or gains derived during any income year beginning on or after 1 January in the calendar year immediately following that in which the Agreement enters into force.ARTICLE 30 Termination
This Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of five years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in Australia:
(i) in relation to withholding tax on income that is derived by a non-resident, in respect of income derived on or after 1 January in the calendar year immediately following that in which the notice of termination is given;
(ii) in relation to other Australian tax, in respect of income, profits or gains of any year of income beginning on or after 1 July in the calendar year immediately following that in which the notice of termination is given;
(b) in Fiji:
in relation to Fiji tax, in respect of income, profits or gains derived during any income year beginning on or after 1 January in the calendar year immediately following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.
DONE in duplicate at Canberra this fifteenth day of October, One thousand nine hundred and ninety in the English language.
FOR AUSTRALIA:
Hon. P J Keating
Minister of State for the Treasury of AustraliaFOR FIJI:
Hon. J N Kamikamica
Minister of Finance and Economic Planning for the Government of the Republic of Fiji
Sch 32 amended by No 35 of 1992 and inserted by No 121 of 1990. The Fijian agreement entered into force on 28 December 1990.
(Repealed by No 45 of 2011)
History
Sch 33 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Hungarian Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 33 formerly read:
SCHEDULE 33 - Hungarian Agreement
Section 3
AGREEMENT BETWEEN AUSTRALIA AND THE REPUBLIC OF HUNGARY FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Agreement shall apply are:
(a) in Australia-
the income tax, and the petroleum resource rent tax in respect of offshore projects, imposed under the federal law of the Commonwealth of Australia;
(b) in Hungary-
the income tax on individuals and the profit taxes, imposed under the law of the Republic of Hungary.
(2)
This Agreement shall also apply to any identical or substantially similar taxes which are imposed under the federal law of the Commonwealth of Australia or the law of the Republic of Hungary after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in the laws of their respective States relating to the taxes to which this Agreement applies within a reasonable period of time after such changes.
(3)
In this Agreement, the terms "Australian tax" and "Hungarian tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes to which this Agreement applies.
ARTICLE 3 General Definitions
(1)
In 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; andand 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 exploitation of any of the natural resources of the seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "Hungary" when used in a geographical sense means the territory of the Republic of Hungary;
(c) the terms "a Contracting State", "one of the Contracting States" and "other Contracting State" mean Australia or the Republic of Hungary, as the context requires;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) the terms "enterprise of a Contracting State", "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of the Republic of Hungary, as the context requires;
(g) the term "tax" means Australian tax or Hungarian tax, as the context requires;
(h)the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "Hungarian tax" means tax imposed by the Republic of Hungary, being tax to which this Agreement applies by virtue of Article 2;
(j) 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 Republic of Hungary, the Minister of Finance, or an authorised representative of the Minister.
(2)
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State from time to time in force relating to the taxes to which this Agreement applies.
ARTICLE 4 Residence
(1)
For the purposes of this Agreement, a person is a resident of one of the Contracting States:
(a) in the case of Australia, if the person is a resident of Australia for the purposes of Australian tax; and
(b) in the case of the Republic of Hungary, if the person is liable to tax therein by reason of domicile, residence, place of management or any other criterion of a similar nature.
(2)
A person is not a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
(3)
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the status of the person shall be determined in accordance with the following rules:
(a) the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person;
(b) if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State with which the personal and economic relations of the person are the closer (centre of vital interests).
(4)
Where by reason of the provisions of paragraph (1), a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business or production through which the activities of an enterprise are wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) a farm or forest;
(h) a building site or construction, installation or assembly project which exists for more than 12 months.
(3)
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; or
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; or
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; or
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise; or
(f) the maintenance of a fixed place of business solely for any combination of activities mentioned in subparagraphs (a) to (e), provided that the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character.
(4)
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if:
(a) it carries on supervisory activities in that State for more than 12 months in connection with a building site, or a construction, installation or assembly project which is being undertaken in that State; or
(b) substantial equipment is being used in that State for more than 12 months by, for or under contract with the enterprise in, or in respect of, the exploration for or the exploitation of natural resources, or in respect of activities connected with such exploration or exploitation.
(5)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (6) applies - shall be deemed to be a permanent establishment of that enterprise in the firstmentioned State if the person has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise.
(6)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a person who is a broker, general commission agent or any other agent of an independent status and is acting in the ordinary course of the person's business as such a broker or agent.
(7)
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
(8)
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of this Agreement whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
ARTICLE 6 Income from Real Property
(1)
Income from real property may be taxed in the Contracting State in which the real property is situated.
(2)
In this Article, the term "real property", in relation to one of the Contracting States, has the meaning which it has under the laws of that State and includes:
(a) a lease of land and any other interest in or over land, including a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine such deposits or resources; and
(b) a right to receive variable or fixed payments either as consideration for the exploitation of or the right to explore for or exploit, or in respect of the exploitation of, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources.Ships and aircraft shall not be regarded as real property.
(3)
Any interest or right referred to in paragraph (2) shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
(4)
The provisions of paragraphs (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.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph (3), where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
(6)
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
(7)
For the purposes of the preceding paragraphs, the profit to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.
(8)
Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits from insurance with non-residents, provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the ContractingStates shall consult with a view to agreeing to any amendment of this paragraph that may be appropriate.
(9)
Where:
(a) a resident of a Contracting State is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in the other Contracting State,the enterprise carried on by the trustees shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated therein and that share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Ships, Aircraft and Road Transport Vehicles
(1)
Profits from the operation of ships, aircraft or road transport vehicles derived by a resident of one of the Contracting States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1), such profits may be taxed in the other Contracting State where they are profits from operations of ships, aircraft or road transport vehicles confined solely to places in that other State.
(3)
The provisions of paragraphs (1) and (2) shall apply in relation to the share of the profits from the operation of ships, aircraft or road transport vehicles derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organization or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage by ships, aircraft or road transport vehicles of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from operations of ships, aircraft or road transport vehicles confined solely to places in that State.
ARTICLE 9 Associated Enterprises
(1)
Where:
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State; or
(c) a person, acting in a Contracting State on behalf of an enterprise of the other Contracting State, manufactures or processes in the firstmentioned State for the enterprise, goods or merchandise belonging to the enterprise,and in any case conditions operate between the two enterprises, or between an enterprise and the person, in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises, or between an independent enterprise and a person, dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises or to the person but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise or of the person and taxed accordingly.
(2)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the income to be attributed to an enterprise or a person, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
(3)
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph (1) or (2), in the profits of an enterprise or of a person of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise or to that person of the other State if the conditions operative between the enterprises or between an enterprise and the person had been those which might have been expected to have operated between independent enterprises or between an independent enterprise and a person dealing wholly independently with one another, then the firstmentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the first mentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of a Contracting State for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends.
(3)
The term "dividends" as used in this Article means income from shares or other rights to participate in profits and not relating to debt claims, as well as other income which is subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribution is a resident.
(4)
The provisions of paragraph (2) shall not apply if the person beneficially entitled to the dividends, being a resident of a Contracting State, carries on business in the other contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In any such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other Contracting State may not impose any tax on the dividends paid by the company, except in so far as such dividends are beneficially owned by a resident of that other State or in so far as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company's undistributed profits to tax even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in that other State.
ARTICLE 11 Interest
(1)
Interest arising in a Contracting State, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
The term "interest" in this Article means interest from indebtedness of every kind, whether or not secured by mortgage and whether or not carrying a right to participate in the debtor's profits, and in particular, income from government securities or from bonds or debentures, and all other income that is, by the law relating to tax of the Contracting State in which the income arises, assimilated to income from money lent.
(4)
The provisions of paragraph (2) shall not apply if the person beneficially entitled to the interest, being a resident of a Contracting State, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the indebtedness in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last mentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
(7)
Interest derived from the investment of official reserves by the Government of a Contracting State or by a bank performing central banking functions in a Contracting State shall be exempt from tax in the other Contracting State.
ARTICLE 12 Royalties
(1)
Royalties arising in a Contracting State to which a resident of the other Contracting State is beneficially entitled may be taxed in that other State.
(2)
Such royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
(3)
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; or
(b) the use of, or the right to use, any industrial, commercial or scientific equipment; or
(c) the supply of scientific, technical, industrial or commercial knowledge or information; or
(d) the supply of assistance ancillary and subsidiary to and furnished to enable the application or enjoyment of or the use of, or the right to use or the supply of the items referred to in subparagraphs (a), (b) and (c); or
(e) the use of, or the right to use:
(i) motion picture films; or
(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.
(4)
The provisions of paragraph (2) shall not apply if the person beneficially entitled to the royalties, being a resident of a Contracting State, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the property or right in respect of which the royalties are paid or credited is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of a Contracting State or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the last mentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of Property
(1)
Income or gains derived by a resident of a Contracting State from the alienation of real property referred to in Article 6 and, as provided in that Article, situated in the other Contracting State may be taxed in that other State.
(2)
Income or gains from the alienation of property, other than real property referred to in Article 6, that forms part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or pertains to a fixed base available to a resident of the first mentioned State in that other State for the purpose of performing independent personal services, including income or gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base, may be taxed in that other State.
(3)
Income or gains from the alienation of ships, aircraft or road transport vehicles operated in international traffic, or of property other than real property referred to in Article 6 pertaining to the operation of those ships, aircraft or road transport vehicles, shall be taxable only in the Contracting State of which the enterprise which operated those ships, aircraft or road transport vehicles is a resident.
(4)
Income or gains derived by a resident of a Contracting State from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of real property in the other Contracting State of a kind referred to in Article 6, may be taxed in that other State.
(5)
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of property other than that to which any of paragraphs (1), (2), (3) and (4) apply.
ARTICLE 14 Independent Personal Services
(1)
Income derived by an individual who is a resident of a Contracting State in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless a fixed base is regularly available to the individual in the other Contracting State for the purpose of performing the individual's activities. If such a fixed base is available to the individual, the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base.
(2)
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, dentists, lawyers, engineers, architects and accountants.
ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 18, 19, 20 and 21, salaries, wages and other similar remuneration derived by an individual who is a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first mentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the year of income of that other State;
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not borne by a permanent establishment or a fixed base which the employer has in that other State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship, aircraft or road transport vehicle operated in international traffic by a resident of one of the Contracting States may be taxed in that State.ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a person who is a resident of one of the Contracting States in the person's capacity as a member of the board of directors or any similar organ of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers and Athletes
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
(2)
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
(3)
The provisions of paragraphs (1) and (2) of this Article shall not apply to income derived from activities performed in a Contracting State by a non-profit organisation or by entertainers or athletes if the visit to the Contracting State is substantially supported by public funds and the activities are not performed for the purposes of profit.
ARTICLE 18 Pensions and Annuities
(1)
Pensions (including government pensions) and annuities paid to a resident of a Contracting State shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
ARTICLE 19 Government Service
(1)
Remuneration, other than a pension or annuity, paid by a Contracting State or a political subdivision or local authority of that State to any individual in respect of services rendered to it or to one or more of them shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
(2)
The provisions of paragraph (1) shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by one of the Contracting States or a political subdivision or local authority of that State. In such a case, the provisions of Article 15 or Article 16, as the case may be, shall apply.
ARTICLE 20 Professors and Teachers
(1)
Where a professor or teacher who is a resident of a Contracting State visits the other Contracting State for a period not exceeding two years for the purpose of teaching or carrying out advanced study or research at a university, college, school or other educational institution in that other State, any remuneration the person receives for such teaching, advanced study or research shall be exempt from tax in that other State to the extent to which that remuneration is, or upon the application of this Article will be, subject to tax in the first mentioned State.
(2)
This Article shall not apply to remuneration which a professor or teacher receives for conducting research if the research is undertaken primarily for the private benefit of a specific person or persons.
ARTICLE 21 Students and Trainees
Where a student or trainee, who is a resident of a Contracting State or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of education or training, receives payments from sources outside that other State for the purpose of maintenance, education, or training, those payments shall be exempt from tax in that other State.ARTICLE 22 Income Not Expressly Mentioned
(1)
Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that State.
(2)
The provisions of paragraph (1) shall not apply to income if the beneficial owner of such income, being a resident of a Contracting State, carries on business in the other Contracting State through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the income is paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(3)
Notwithstanding the provisions of paragraphs (1) and (2), items of income of a resident of a Contracting State not dealt with in the foregoing articles of this Agreement and arising in the other Contracting State may be taxed in that other State.
ARTICLE 23 Source of Income
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8, 10 to 17, 19 and 22, may be taxed in the other Contracting State shall, for the purposes of Article 24 and of the income tax laws of the respective States be deemed to be income from sources in that other State.ARTICLE 24 Methods of Elimination of Double Taxation
(1)
In the Republic of Hungary double taxation shall be eliminated as follows:
(a) where a resident of the Republic of Hungary derives income or gains which, in accordance with the provisions of this Agreement, may be taxed in Australia, the Republic of Hungary shall, subject to the provisions of subparagraph (b), exempt such income or gains from tax;
(b) where a resident of the Republic of Hungary derives items of income which, in accordance with the provisions of Article 10, may be taxed in Australia, the Republic of Hungary shall allow as a deduction from the tax on the income of that resident an amount equal to the tax paid in Australia. Such deduction shall not, however, exceed that part of the tax, as computed before the deduction is given which is attributable to such items of income derived from Australia.
(2)
In Australia, double taxation shall be eliminated as follows:
(a) subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Hungarian tax paid under the law of the Republic of Hungary and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Hungary shall be allowed as a credit against Australian tax payable in respect of that income;
(b) where a company which is a resident of the Republic of Hungary and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 per cent of the voting power of the firstmentioned company, the credit referred to in subparagraph (a) shall include the tax paid by that firstmentioned company in respect of that portion of its profits out of which the dividend is paid.
ARTICLE 25 Mutual Agreement Procedure
(1)
Where a person who is a resident of a Contracting State considers that the actions of the competent authority of one or both of the Contracting States result or will result for the person in taxation not in accordance with this Agreement, the person may, notwithstanding the remedies provided by the national laws of those States, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within three years from the first notification of the action giving rise to taxation not in accordance with this Agreement.
(2)
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the national laws of the Contracting States.
(3)
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the interpretation of this Agreement. In cases which are not provided for, the competent authorities may also consult to identify appropriate ways by which double taxation may be eliminated through amendment of this Agreement.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 26 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the domestic laws of the Contracting States concerning the taxes to which this Agreement applies in so far as the taxation thereunder is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes. Any information received will be treated as secret on request of the Contracting State giving the information.
(2)
In no case shall the provisions of paragraph (1) be construed so as to impose on the competent authority of a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State; or
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; or
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 27 Diplomatic and Consular Officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special international agreements.ARTICLE 28 Entry into Force
This Agreement shall enter into force on the date on which the Contracting States exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in the Republic of Hungary, as the case may be, and thereupon this Agreement shall have effect:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(ii) in respect of other Australian tax, in relation to profits, income or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(b) in the Republic of Hungary:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the Agreement enters into force;
(ii) in respect of other Hungarian tax, in relation to profits, income or gains of any year of income beginning on or after 1 January in the calendar year next following that in which the Agreement enters into force.ARTICLE 29 Termination
This Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to profits, income or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in the Republic of Hungary:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Hungarian tax, in relation to profits, income or gains of 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.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.
DONE in duplicate at CANBERRA this TWENTY-NINTH day of NOVEMBER One thousand nine hundred and ninety in the English and Hungarian languages, both texts being equally authentic.
PAUL KEATING
FOR AUSTRALIAGÉZA JESZENSZKY
FOR THE REPUBLIC OF HUNGARY
Sch 33 inserted by No 96 of 1991, s 5. The Hungarian agreement entered into force on 10 April 1992.
(Repealed by No 45 of 2011)
History
Sch 34 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Kiribati Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 34 formerly read:
SCHEDULE 34 - Kiribati Agreement
Section 3
AGREEMENT BETWEEN AUSTRALIA AND THE REPUBLIC OF KIRIBATI FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes Covered
1
The existing taxes to which this Agreement shall apply are:
(a) in Australia:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of Australia;
(b) in Kiribati, the income tax imposed under the law of Kiribati.
2
This Agreement shall also apply to any identical or substantially similar taxes which are imposed under the federal law of Australia or the law of Kiribati after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in the laws of their respective States relating to the taxes to which this Agreement applies within a reasonable period of time after those changes.
ARTICLE 3 General Definitions
1
In 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; andand 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 seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "Kiribati" means the Republic of Kiribati and includes all adjacent areas which, consistently with international law, have been, or may after the date of this Agreement be, designated under the laws of Kiribati as areas over which Kiribati has sovereignty, sovereign rights or jurisdiction in relation to the exploration for and exploitation of the resources of the sea, the seabed and its subsoil;
(c) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" mean Australia or Kiribati, as the context requires;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Kiribati, as the context requires;
(g) the term "tax" means Australian tax or Kiribati tax, as the context requires, but does not include any penalty or interest imposed under the law of either Contracting State relating to its tax;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "Kiribati tax" means tax imposed by the Republic of Kiribati, being tax to which this Agreement applies by virtue of Article 2;
(j) 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 Kiribati, the Internal Revenue Board or an authorised representative of the Board.
2
In the application of this agreement by one of the Contracting States, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State from time to time in force relating to the taxes to which this Agreement applies.
ARTICLE 4 Residence
1
For the purposes of this Agreement, a person is a resident of one of the Contracting States:
(a) in the case of Australia, if the person is a resident of Australia for the purposes of Australian tax; and
(b) in the case of Kiribati, if the person is a resident of Kiribati for the purposes of Kiribati tax.
2
A person is not a resident of one of the Contracting States for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
3
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the status of the person shall be determined in accordance with the following rules:
(a) the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person;
(b) if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State in which the person has an habitual abode;
(c) if the person has an habitual abode in both Contracting States, or if the person does not have an habitual abode in either of them, the person shall be deemed to be a resident solely of the Contracting State with which the person's personal and economic relations are the closer.
4
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then the person's status shall be determined as follows:
(a) it shall be deemed to be a resident of the Contracting State in which it is incorporated or otherwise constituted;
(b) if it is not incorporated or otherwise constituted in either of the Contracting States, it shall be deemed to be a resident of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
1
For the purposes of this Agreement, the term "permanent establishment", in relation to an enterprise, means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
2
The term "permanent establishment" shall include especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property; and
(h) a building site or construction, installation or assembly project which exists for more than 90 days.
3
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; or
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; or
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; or
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
4
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if:
(a) it carries on supervisory activities in that State for more than 90 days in connection with a building site, or a construction, installation or assembly project, which is being undertaken in that State; or
(b) services are furnished in that State, including consultancy, management or administrative services through employees or other personnel engaged by the enterprise or an associated enterprise for such purposes, and those activities continue for the same or a connected project within that State for a period or periods aggregating more than 90 days in any year of income or tax year, as the case may be; or
(c) substantial equipment is being used in that State by, for or under contract with the enterprise.
5
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph 6 applies - shall be deemed to be a permanent establishment of that enterprise in the firstmentioned State if:
(a) the person has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) notwithstanding the provisions of subparagraphs 3(a) and 3(b), the person has no such authority but habitually maintains in that State a stock of goods or merchandise from which the person regularly delivers in that State goods or merchandise on behalf of the enterprise; or
(c) in so acting, the person manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
6
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a person who is a broker, general commission agent or any other agent of an independent status and is acting in the ordinary course of the person's business as such a broker or agent.
7
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
8
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph 5 of Article 11 and paragraph 5 of Article 12 whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
ARTICLE 6 Income from Real Property
1
Income from real property may be taxed in the Contracting State in which the real property is situated.
2
In this Article, the term "real property", in relation to one of the Contracting States, has the meaning which it has under the laws of that State and includes:
(a) a lease of land and any other interest in or over land, whether improved or not, including a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine those deposits or resources; and
(b) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources.
3
Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
4
The provisions of paragraphs 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.
ARTICLE 7 Business Profits
1
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to:
(a) that permanent establishment; or
(b) sales within that other Contracting State of goods or merchandise of the same or a similar kind as those sold, or other business activities within that other State of the same or a similar kind as those carried on, through that permanent establishment, if, on the basis of the information available to the competent authority of that other State, it may reasonably be concluded that those sales or business activities would not have been made or carried on but for the existence of that permanent establishment or the continued provision by it of goods or services.
2
Subject to the provisions of paragraph 3, where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated in that other State, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
3
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
4
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5
Nothing in this Article shall affect the application of any law of one of the Contracting States relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
6
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
7
Nothing in this Article shall affect the operation of any law of one of the Contracting States relating to tax imposed on profits from insurance with non-residents provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
8
Where:
(a) a resident of one of the Contracting States is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated in that other State and that share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Ships and Aircraft
1
Profits from the operation of aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
2
Profits from the operation of ships derived by a resident of one of the Contracting States may be taxed in that Contracting State and may also be taxed in the other State, but the tax so charged in the other State shall be reduced by an amount equal to one half of the amount which would be payable in respect of those profits but for this paragraph.
3
Notwithstanding the provisions of paragraph 1, such profits may be taxed in the other Contracting State, where they are profits from the operation of aircraft confined solely to places in that other State; and notwithstanding the provisions of paragraph 2, such profits may be taxed in the other Contracting State without reduction, where they are profits from the operation of ships confined solely to places in that other State.
4
The provisions of paragraphs 1, 2 and 3 shall apply in relation to the share of profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organisation or in an international operating agency.
5
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from the operation of ships or aircraft confined solely to places in that State.
ARTICLE 9 Associated Enterprises
1
Where:
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the 2 enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2
Nothing in this Article shall affect the application of any law of one of the Contracting States relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the income to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
3
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph 1 or 2, in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the firstmentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the firstmentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
1
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2
Those dividends may be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed 20 per cent of the gross amount of the dividends.
3
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the law, relating to tax, of the Contracting State of which the company making the distribution is a resident for the purposes of its tax.
4
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or 14, as the case may be, shall apply.
5
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except in so far as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. This paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Kiribati for the purposes of Kiribati tax.
ARTICLE 11 Interest
1
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2
That interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, interest from any other form of indebtedness and all other income assimilated to income from money lent by the law, relating to tax, of the Contracting State in which the income arises.
4
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixedbase situated in that other State, and the indebtedness in respect of which the interest is paid is effectively connected with that permanent establishment or fixed base. In that case, the provisions of Article 7 or 14, as the case may be, shall apply.
5
Interest shall be deemed to arise in one of the Contracting States when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment or fixed base, then the interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of that relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 12 Royalties
1
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2
Those royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the royalties.
3
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; or
(b) the use of, or the right to use, any industrial, commercial or scientific equipment; or
(c) the supply of scientific, technical, industrial or commercial knowledge or information; or
(d) the supply of any assistance that is 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); or
(e) the use of, or the right to use:
(i) motion picture films; or
(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.
4
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the property or right in respect of which the royalties are paid or credited is effectively connected with that permanent establishment or fixed base. In that case, the provisions of Article 7 or 14, as the case may be, shall apply.
5
Royalties shall be deemed to arise in one of the Contracting States when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of Property
1
Income, profits or gains derived by a resident of one of the Contracting States from the alienation of real property situated in the other Contracting State may be taxed in that other State.
2
Income, profits or gains from the alienation of property, other than real property, that forms part of the business property of a permanent establishment which an enterprise of one of the Contracting States has in the otherContracting State or pertains to a fixed base available in that other State to a resident of the firstmentioned State for the purpose of performing independent personal services, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise) or of that fixed base, may be taxed in that other State.
3
Income, profits or gains from the alienation of ships or aircraft operated in international traffic, or of property (other than real property) pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise which operated those ships or aircraft is a resident.
4
Income, profits or gains derived by a resident of one of the Contracting States from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of real property situated in the other Contracting State, may be taxed in that other State.
5
Nothing in this Agreement affects the application of a law of one of the Contracting States relating to the taxation of gains of a capital nature derived from the alienation of property other than that to which any of the preceding paragraphs of this Article apply.
6
In this Article, the term "real property" has the same meaning as it has in Article 6.
7
The situation of real property shall be determined for the purposes of this Article in accordance with paragraph 3 of Article 6.
ARTICLE 14 Independent Personal Services
1
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless:
(a) a fixed base is regularly available to the individual in the other Contracting State for the purpose of performing the individual's activities. If such a fixed base is available to the individual, the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base; or
(b) the income is derived from a resident of that other Contracting State or a permanent establishment in that other Contracting State and exceeds an amount of $A8,000 or its equivalent in any other currency in any one 12 month period. In that case so much of the income as is derived from that individual's activities in that other Contracting State may be taxed in that State; or
(c) that individual's stay in that other Contracting State exceeds an aggregate of 90 days in any year of income or tax year, as the case may be, of that other State. In that case so much of the income as is derived from that individual's activities in that other Contracting State may be taxed in that State.
2
The Treasurer of Australia and the Minister of Finance and Economic Planning of Kiribati may mutually determine in letters exchanged for the purpose variations in the amount specified in subparagraph 1(b) and any variations so determined shall have effect according to the tenor of the letters.
3
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
1
Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
2
Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the firstmentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 90 days in the year of income or tax year, as the case may be, of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State; and
(d) the remuneration is, or upon the application of this Article will be, subject to tax in the firstmentioned State.
3
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that State.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a resident of one of the Contracting States as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers
1
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes, and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
2
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
ARTICLE 18 Pensions and Annuities
1
Pensions (including government pensions) and annuities paid to a resident of one of the Contracting States shall be taxable only in that State.
2
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
3
Any alimony or other maintenance payment arising in one of the Contracting States and paid to a resident of the other Contracting State shall be taxable only in the firstmentioned State.
ARTICLE 19 Government Service
1
Remuneration, other than a pension or annuity, paid by one of the Contracting States or a political subdivision or local authority of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen or national of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
2
The provisions of paragraph 1 shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by one of the Contracting States or a political subdivision or local authority of that State. In that case, the provisions of Article 15 or 16, as the case may be, shall apply.
ARTICLE 20 Students and Trainees
Where a student or trainee, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of the student's or trainee's education or training, receives payments from sources outside that other State for the purpose of the student's or trainee's maintenance, education, or training, those payments shall be exempt from tax in that other State.ARTICLE 21 Income Not Expressly Mentioned
1
Items of income of a resident of one of the Contracting States which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable only in that State.
2
However, any such income derived by a resident of one of the Contracting States from sources in the other Contracting State may also be taxed in that other State.
3
The provisions of paragraph 1 shall not apply to income derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In that case, the provisions of Article 7 or 14, as the case may be, shall apply.
ARTICLE 22 Source of Income
1
Income, profits or gains derived by a resident of one of the Contracting States which, under any one or more of Articles 6 to 8, 10 to 19 and 21, may be taxed in the other Contracting State shall for the purposes of the law of that other Contracting State relating to its tax be deemed to be income from sources in that other Contracting State.
2
Income, profits or gains derived by a resident of one of the Contracting States which, under any one or more of Articles 6 to 8, 10 to 19 and 21, may be taxed in the other Contracting State shall for the purposes of Article 23 and of the law of the firstmentioned Contracting State relating to its tax be deemed to be income from sources in the other Contracting State.
ARTICLE 23 Methods of Elimination of Double Taxation
1
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article), Kiribati tax paid under the law of Kiribati and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Kiribati shall be allowed as a credit against Australian tax payable in respect of that income.
2
Where a company which is a resident of Kiribati and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 per cent of the voting power of the firstmentioned company, the credit referred to in paragraph 1 shall include the Kiribati tax paid by that firstmentioned company in respect of that portion of its profits out of which the dividend is paid.
3
For the purpose of paragraphs 1 and 2, Kiribati tax paid shall include an amount equivalent to any Kiribati tax forgone.
4
In paragraph 3, the term "Kiribati tax forgone" means the amount which, under the law of Kiribati relating to Kiribati tax and in accordance with this Agreement, would have been payable as Kiribati tax on income or a payment but for an exemption from, or reduction of, Kiribati tax on that income or payment resulting from the operation of:
(a) section 82 and Schedule 8 or section 90(4) of the Income Tax Act 1990 in so far as those provisions were in force on, and have not been modified since, the date of signature of this Agreement or have been modified only in minor respects so as not to affect their general character; or
(b) any other provision which may subsequently be made granting an exemption from or reduction of tax which the authorised representatives of the Government of Australia and of the Government of Kiribati mutually determine in writing to be of a substantially similar character, provided that such provisions are not modified thereafter or are modified only in minor respects so as not to affect their general character.
5
The provisions of paragraphs 3 and 4 shall not apply in respect of income or a payment attributable to the provision of services provided directly or indirectly to a person who is a resident of Australia, except where the services are in the nature of tourism or communication services or services provided to manufacturing, mining, construction, fishing or agricultural activities carried on in Kiribati.
6
The provisions of paragraphs 3, 4 and 5 shall apply only in relation to income or a payment derived in any of the first 10 years of income in relation to which this Agreement has effect by virtue of subparagraph (a)(ii) of Article 27 and in any later year of income that may be mutually determined in an exchange of letters for this purpose by the authorised representatives of the Government of Australia and of the Government of Kiribati.
7
In the case of Kiribati, subject to the provisions of the law of Kiribati from time to time in force which relate to the allowance of a credit against Kiribati tax of tax paid in a country outside Kiribati (which shall not affect the general principle of this Article), Australian tax paid under the law of Australia and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Kiribati from sources in Australia shall be allowed as a credit against Kiribati tax payable in respect of that income.
ARTICLE 24 Mutual Agreement Procedure
1
Where a person who is a resident of one of the Contracting States considers that the actions of the competent authority of one or both of the Contracting States result or will result for the person in taxation not in accordance with this Agreement, the person may, notwithstanding the remedies provided by the national laws of those States, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within 3 years from the first notification of the action giving rise to taxation not in accordance with this Agreement.
2
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the national laws of the Contracting States.
3
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the application of this Agreement.
4
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 25 Exchange of Information
1
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the national laws of the Contracting States concerning the taxes to which this Agreement applies in so far as the taxation under those laws is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of one of the Contracting States shall be treated as secret in the same manner as information obtained under the national laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
2
In no case shall the provisions of paragraph 1 be construed so as to impose on the competent authority of one of the Contracting States the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State; or
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; or
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 26 Diplomatic and Consular Officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special international agreements.ARTICLE 27 Entry into Force
This Agreement shall enter into force on the date on which the Contracting States exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in Kiribati, as the case may be, and, in that event, this Agreement shall have effect:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July next following the date on which the Agreement enters into force;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July next following the date on which the Agreement enters into force;
(b) in Kiribati:
in respect of Kiribati tax, in relation to income, profits or gains of any tax year beginning on or after 1 January next following the date on which the Agreement enters into force.ARTICLE 28 Termination
This Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July next following the date on which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July next following the date on which the notice of termination is given;
(b) in Kiribati:
in respect of Kiribati tax, in relation to income, profits or gains of any tax year beginning on or after 1 January next following the date on which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.
DONE in duplicate at CANBERRA this TWENTY-FIFTH day of MARCH One thousand nine hundred and ninety-one in the English language.
FOR AUSTRALIA
PAUL KEATINGFOR THE REPUBLIC OF KIRIBATI
TEATAO TEANNAKI
Sch 34 inserted by No 96 of 1991. The Kiribati agreement entered into force on 28 June 1991.
(Repealed by No 45 of 2011)
History
Sch 35 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Indian Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 35 formerly read:
SCHEDULE 35 - Indian Agreement
Section 3
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE REPUBLIC OF INDIA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Agreement shall apply are:
(a) in Australia:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of the Commonwealth of Australia;
(b) in India:
(i) the income tax including any surcharge thereon; and
(ii) the surtax imposed on chargeable profits of companies.
(2)
This Agreement shall also apply to any identical or substantially similar taxes which are imposed under the federal law of the Commonwealth of Australia or the law of the Republic of India after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in the laws of their respective States relating to the taxes to which this Agreement applies.
ARTICLE 3 General 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; andand includes any area adjacent to the territorial limits of Australia (including the Territories specified in subparagraphs (i) to (vi) inclusive) in respect of which there is for the time being in force, consistently with international law, a law of Australia dealing with the exploitation of any of the natural resources of the seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "India" means the territory of India and includes the territorial sea and the air space above it, as well as any other maritime zone in which India has sovereign rights, other rights and jurisdictions, according to the Indian law and in accordance with international law;
(c) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" mean, as the context requires, Australia or India, the Governments of which have concluded this Agreement;
(d) the term "person" includes an individual, a company, any other body of persons and any other entity which is treated as a taxable unit for tax purposes;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of India, as the context requires;
(g) the term "tax" means Australian tax or Indian tax, as the context requires;
(h) the term:
(i) "Australian tax" means tax imposed by Australia; andbeing tax to which this Agreement applies by virtue of Article 2, but neither term includes any amount which represents a penalty or fine or interest imposed under the law of either Contracting State relating to its tax;
(ii) "Indian tax" means tax imposed by India,
(i) 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 India, the Central Government in the Ministry of Finance (Department of Revenue) or their authorised representative; and
(j) the term "year of income", in relation to Indian tax, means "previous year" as defined in the Income Tax Act, 1961.
(2)
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State from time to time in force relating to the taxes to which this Agreement applies.
ARTICLE 4 Residence
(1)
For the purposes of this Agreement, a person is a resident of one of the Contracting States if the person is a resident of that Contracting State for the purposes of its tax. However, a person is not a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
(2)
Where, by reason of the provisions of paragraph (1), an individual is a resident of both Contracting States, then the status of that person shall be determined in accordance with the following rules:
(a) the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person;
(b) if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State with which the person's personal and economic relations are closer (centre of vital interests).For the purposes of this paragraph, an individual's citizenship of a Contracting State as well as that person's habitual abode shall be factors in determining the degree of the person's personal and economic relations with that Contracting State.
(3)
Where, by reason of the provisions of paragraph (1), a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) a warehouse in relation to a person providing storage facilities for others;
(h) a farm, plantation or other place where agricultural, pastoral, forestry or plantation activities are carried on;
(i) premises used as a sales outlet or for receiving or soliciting orders;
(j) an installation or structure, or plant or equipment, used for the exploration for or exploitation of natural resources;
(k) a building site or construction, installation or assembly project, or supervisory activities in connection with such a site or project, where that site or project exists or those activities are carried on (whether separately or together with other sites, projects or activities) for more than 6 months.
(3)
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if:
(a) substantial equipment is being used in that State by, for or under contract with the enterprise;
(b) it carries on activities in that State in connection with the exploration for or exploitation of natural resources in that State; or
(c) it furnishes services, including managerial services and those mentioned in subparagraphs (3)(h) to (k) of Article 12 but not those services in respect of which payments or credits that are royalties as defined in Article 12 are made, within one of the Contracting States through employees or other personnel, but only if those services are furnished within that State:
(i) for a period or periods aggregating more than 90 days within any 12 month period; or
(ii) for another enterprise if both enterprises are within either of the relationships described in subparagraphs (1)(a) and (b) of Article 9.
(4)
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage or display of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage or display;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or of collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of advertising, for the supply of information, for scientific research, or for similar activities which have a preparatory or auxiliary character, for the enterprise.However, the preceding provisions of this paragraph shall not apply where an enterprise of one of the Contracting States maintains in the other Contracting State a fixed place of business for any purpose other than those specified in this paragraph.
(5)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (6) applies - shall be deemed to be a permanent establishment of that enterprise in the firstmentioned State if:
(a) the person has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise;
(b) the person has no such authority, but habitually maintains in that State a stock of goods or merchandise from which the person regularly delivers goods or merchandise on behalf of the enterprise;
(c) the person habitually secures orders in that State, wholly or principally for the enterprise itself or for the enterprise and other enterprises controlling, or controlled by or subject to the same common control as, that enterprise; or
(d) in so acting, the person manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
(6)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, where that person is acting in the ordinary course of the person's business as such a broker or agent. However, when the activities of such a broker or agent are carried on wholly or principally on behalf of that enterprise itself or on behalf of that enterprise and other enterprises controlling, or controlled by or subject to the same common control as, that enterprise, the person will not be considered a broker or agent of an independent status within the meaning of this paragraph.
(7)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
(8)
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph (5) of Article 11 and paragraph (5) of Article 12 of this Agreement whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
ARTICLE 6 Income from Real Property (Immovable Property)
(1)
Income from real property 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 include:
(i) a lease of land and any other interest in or over land, whether improved or not; and
(ii) a right to receive variable or fixed payments either as consideration for the working of or the right to work or explore for, or in respect of the exploitation of, mineral or other deposits, oil or gas wells, quarries or other places of extraction or exploitation of natural resources; and
(b) in the case of India, means such property which, according to the laws of India, is immovable property and shall include:
(i) property accessory to immovable property;
(ii) rights to which the provisions of the general law respecting landed property apply; and
(iii) usufruct of immovable property and rights to receive variable or fixed payments either as consideration for the working of or the right to work or explore for, or in respect of exploitation of, mineral or other deposits, oil or gas wells, quarries or other places of extraction or exploitation of natural resources.
(3)
A lease of land, any other interest in or over land and any rights or property referred to in any of the subparagraphs of paragraph (2) shall be regarded as situated where the land, mineral or other deposits, oil or gas wells, quarries, natural resources or property, as the case may be, are situated or where the exploration may take place.
(4)
The provisions of paragraph (1) shall apply to income derived from the direct use, letting or use in any other form of real property.
(5)
The provisions of paragraphs (1), (3) and (4) shall also apply to the income from real property of an enterprise and to income from real property used for the performance of independent personal services.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to:
(a) that permanent establishment; or
(b) sales within that other Contracting State of goods or merchandise of the same or a similar kind as those sold, or other business activities of the same or a similar kind as those carried on, through that permanent establishment.
(2)
Subject to the provisions of paragraph (3), where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions, in accordance with and subject to the limitations of the law relating to tax in the Contracting State in which the permanent establishment is situated, expenses of the enterprise, being expenses which are incurred for the purposes of the business of the permanent establishment (including executive and general administrative expenses so incurred), whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
Where the correct amount of profits attributable to a permanent establishment is incapable of determination by the taxation authority of one of the Contracting States or the ascertaining thereof by that authority presents exceptional difficulties, nothing in this Article shall affect the application of any law of that State relating to the determination of the tax liability of a person, provided that the law shall be applied, so far as the information available to that authority permits, in accordance with the principles of this Article.
(6)
For the purposes of the preceding paragraphs of this Article, the profits to be attributed to the permanent establishment shall be determined by the same method year by year unless there is good and sufficient reason to the contrary.
(7)
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
(8)
Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits from insurance with non-residents provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(9)
Where:
(a) a resident of one of the Contracting States is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated in that other State as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other Contracting State,the enterprise carried on by the trustee shall be deemed to be a business carried on in that other Contracting State by that resident through a permanent establishment situated therein and that share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Ships and Aircraft
(1)
Profits from the operation of ships or aircraft, including interest on funds connected with that operation, derived by a resident of one of the Contracting States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1), such profits may be taxed in the other Contracting State where they are profits from the operations of ships or aircraft confined solely to places in that other State.
(3)
The provisions of paragraphs (1) and (2) shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organisation or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
ARTICLE 9 Associated Enterprises
(1)
Where:
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the taxation authority of that State is inadequate to determine the income to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
(3)
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph (1) or (2), in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the firstmentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the firstmentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends.
(3)
The term "dividends" in this Article means income from shares and other income which is subjected to the same taxation treatment as income from shares by the laws of the Contracting State of which the company making the distribution is a resident for the purposes of its tax.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In any such case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. Provided that this paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax andwhich is also a resident of India for the purposes of Indian tax.
ARTICLE 11 Interest
(1)
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such interest may also be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the interest.
(3)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to income from money lent by the law, relating to tax, of the Contracting State in which the income arises, but does not include interest referred to in paragraph (1) of Article 8.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the indebtedness in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 12 Royalties
(1)
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such royalties may also be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed:
(a) in the case of:
(i) royalties referred to in subparagraph (3)(b);
(ii) payments or credits for services referred to in subparagraph (3)(d), subject to subparagraphs (3)(h) to (l), that are ancillary and subsidiary to the application or enjoyment of equipment for which payments or credits are made under subparagraph (3)(b); or
(iii) royalties referred to in subparagraph (3)(f) that relate to equipment mentioned in subparagraph (3)(b):10 per cent of the gross amount of the royalties; and
(b) in the case of other royalties:
(i) during the first 5 years of income for which this Agreement has effect:
(A) where the payer is the Government or a political subdivision of that State or a public sector company: 15 per cent of the gross amount of the royalties; and
(B) in all other cases: 20 per cent of the gross amount of the royalties; and
(ii) during all subsequent years of income: 15 per cent of the gross amount of the royalties.
(3)
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 rendering of any technical or consultancy services (including those of technical or other personnel) which are ancillary and subsidiary to 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);
(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;
(f) total or partial forbearance in respect of the use or supply of any property or right referred to in subparagraphs (a) to (e); or
(g) the rendering of any services (including those of technical or other personnel) which make available technical knowledge, experience, skill, knowhow or processes or consist of the development and transfer of a technical plan or design;but that term does not include payments or credits relating to services mentioned in subparagraphs (d) and (g) that are made:
(h) for services that are ancillary and subsidiary, and inextricably and essentially linked, to a sale of property;
(i) for services that are ancillary and subsidiary to the rental of ships, aircraft, containers or other equipment used in connection with the operation of ships or aircraft in international traffic;
(j) for teaching in or by an educational institution;
(k) for services for the personal use of the individual or individuals making the payments or credits; or
(l) to an employee of the person making the payments or credits or to any individual or firm of individuals (other than a company) for professional services as defined in Article 14.
(4)
The provisions of paragraphs (1) and (2) shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the property, right or services in respect of which the royalties are paid or credited are effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of Property
(1)
Income or gains derived by a resident of one of the Contracting States from the alienation of real property referred to in Article 6 and, as provided in that Article, situated in the other Contracting State may be taxed in that other State.
(2)
Income or gains derived from the alienation of property, other than real property referred to in Article 6, that forms part of the business property of a permanent establishment which an enterprise of one of the Contracting States has in the other Contracting State or pertains to a fixed base available to a resident of the firstmentioned State in that other State for the purpose of performing independent personal services, including income or gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base, may be taxed in that other State.
(3)
Income or gains derived from the alienation of ships or aircraft operated in international traffic, or of property other than real property referred to in Article 6 pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise which operated those ships or aircraft is a resident.
(4)
Income or gains derived from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of real property referred to in Article 6 and, as provided in that Article, situated in one of the Contracting States, may be taxed in that State.
(5)
Income or gains derived from the alienation of shares or comparable interests in a company, other than those referred to in paragraph (4), may be taxed in the Contracting State of which the company is a resident.
(6)
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of property other than that to which any of paragraphs (1), (2), (3), (4) and (5) apply.
ARTICLE 14 Independent Personal Services
(1)
Income derived by an individual or a firm of individuals (other than a company) who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless:
(a) the individual or firm has a fixed base regularly available to the individual or firm in the other Contracting State for the purpose of performing the individual's or the firm's activities, in which case the income may be taxed in that other State but only so much of it as is attributable to activities exercised from that fixed base; or
(b) the stay by the individual or, in the case of a firm, by one or more members of the firm (alone or together) in the other Contracting State is for a period or periods amounting to or exceeding 183 days in a year of income, in which case only so much of the income as is derived from the activities of the individual, that member or those members, as the case may be, in that other State may be taxed in that other State.
(2)
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, surgeons, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 17, 18, 19 and 20, salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the firstmentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in a year of income of that other State;
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that State.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a resident of one of the Contracting States as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by residents of one of the Contracting States as entertainers, such as theatre, motion picture, radio or television artistes, musicians and athletes, from their personal activities as such exercised in the other Contracting State, may be taxed in that other State.
(2)
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
(3)
Notwithstanding the provisions of paragraph (1), income derived by an entertainer who is a resident of one of the Contracting States, from the entertainer's personal activities as such exercised in the other Contracting State, shall be taxable only in the firstmentioned Contracting State if the activities in the other Contracting State are supported wholly or substantially from the public funds of the firstmentioned Contracting State, including any of its political subdivisions or local authorities.
(4)
Notwithstanding the provisions of paragraph (2) and Articles 7, 14 and 15, where income in respect of personal activities exercised by an entertainer in the entertainer's capacity as such in one of the Contracting States accrues not to the entertainer but to another person, that income shall be taxable only in the other Contracting State if that other person is supported wholly or substantially from the public funds of that other State, including any of its political subdivisions or local authorities.
ARTICLE 18 Pensions and Annuities
(1)
Pensions (not including pensions referred to in Article 19) and annuities paid to a resident of one of the Contracting States shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
ARTICLE 19 Government Service
(1)
Remuneration, other than a pension or annuity, paid by one of the Contracting States or a political subdivision or local authority of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
(2)
Any pension paid by, or out of funds created by, one of the Contracting States or a political subdivision or a local authority thereof to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State. However, such pension shall be taxable only in the other Contracting State if the recipient is a resident and a citizen of that other State.
(3)
The provisions of Articles 15, 16 and 18 shall apply, as appropriate in the circumstances, to remuneration and pensions in respect of services rendered in connection with a business carried on by one of the Contracting States or a political subdivision or local authority thereof.
ARTICLE 20 Professors and Teachers
(1)
Where a professor or teacher who is a resident of one of the Contracting States visits the other Contracting State for a period not exceeding two years for the purpose of teaching or carrying out advanced study or research at a university, college, school or other educational institution, any remuneration that person receives for such teaching, advanced study or research shall be exempt from tax in that other State to the extent to which such remuneration is, or upon the application of this Article will be, subject to tax in the firstmentioned State.
(2)
This Article shall not apply to remuneration which a professor or teacher receives for conducting research if the research is undertaken primarily for the private benefit of a specific person or persons.
ARTICLE 21 Students and Trainees
Where a student or trainee, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of the student's or trainee's education or training, receives payments from sources outside that other State for the purpose of the student's or trainee's maintenance, education or training, those payments shall be exempt from tax in that other State.ARTICLE 22 Income Not Expressly Mentioned
(1)
Items of income of a resident of one of the Contracting States which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable only in that State.
(2)
However, any such income derived by a resident of one of the Contracting States from sources in the other Contracting State may also be taxed in that other State.
(3)
The provisions of paragraph (1) shall not apply to income derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
ARTICLE 23 Source of Income
(1)
Income, profits or gains derived by a resident of one of the Contracting States which, under any one or more of Articles 6 to 8, Articles 10 to 20 and Article 22 may be taxed in the other Contracting State, shall for the purposes of the law of that other State relating to its tax be deemed to be income from sources in that other State.
(2)
Income, profits or gains derived by a resident of one of the Contracting States which, under any one or more of Articles 6 to 8, Articles 10 to 20 and Article 22 may be taxed in the other Contracting State, shall for the purposes of Article 24 and of the law of the firstmentioned State relating to its tax be deemed to be income from sources in that other State.
ARTICLE 24 Methods of Elimination of Double Taxation
(1)
(a) Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Indian tax paid under the law of India and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in India shall be allowed as a credit against Australian tax payable in respect of that income.
(b) Where a company which is a resident of India and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 per cent of the voting power of the firstmentioned company, the credit referred to in subparagraph (a) shall include the Indian tax paid by that firstmentioned company in respect of that portion of its profits out of which the dividend is paid.
(2)
In paragraph (1), Indian tax paid shall include:
(a) subject to subparagraph (b), an amount equivalent to the amount of any Indian tax forgone which, under the law of India relating to Indian tax and in accordance with this Agreement, would have been payable as Indian tax on income but for an exemption from, or reduction of, Indian tax on that income in accordance with:
(i) section 10(4), 10(15)(iv), 10A, 10B, 80HHC, 80HHD or 80I of the Income Tax Act, 1961, insofar as those provisions were in force on, and have not been modified since, the date of signature of this Agreement, or have been modified only in minor respects so as not to affect their general character; or
(ii) any other provision which may subsequently be made granting an exemption from or reduction of Indian tax which the Treasurer of Australia and the Minister of Finance of India agree from time to time in letters exchanged for this purpose to be of a substantially similar character, if that provision has not been modified thereafter or has been modified only in minor respects so as not to affect its general character; and
(b) in the case of interest derived by a resident of Australia which is exempted from Indian tax under the provisions referred to in subparagraph (a), the amount which would have been payable as Indian tax if the interest had not been so exempt and if the tax referred to in paragraph (2) of Article 11 did not exceed 10 per cent of the gross amount of the interest.
(3)
Paragraph (2) shall apply only in relation to income derived in any of the first 10 years of income in relation to which this Agreement has effect under subparagraph (1)(a)(ii) of Article 28 or in any later year of income that may be agreed by the Contracting States in letters exchanged for this purpose.
(4)
In the case of India, double taxation shall be avoided as follows:
(a) the amount of Australian tax paid under the laws of Australia and in accordance with the provisions of this Agreement, whether directly or by deduction, by a resident of India in respect of income from sources within Australia which has been subjected to tax both in India and Australia shall be allowed as a credit against the Indian tax payable in respect of such income but in an amount not exceeding that proportion of Indian tax which such income bears to the entire income chargeable to Indian tax; and
(b) for the purposes of the credit referred to in subparagraph (a) above, where the resident of India is a company by which surtax is payable, the credit to be allowed against Indian tax shall be allowed in the first instance against the income tax payable by the company in India and, as to the balance, if any, against the surtax payable by it in India.
(5)
Where a resident of one the Contracting States derives income which, in accordance with the provisions of this Agreement shall be taxable only in the other Contracting State, the firstmentioned State may take that income into account in calculating the amount of its tax payable on the remaining income of that resident.
ARTICLE 25 Mutual Agreement Procedure
(1)
Where a person who is a resident of one of the Contracting States considers that the actions of the taxation authority of one or both of the Contracting States result or will result for the person in taxation not in accordance with this Agreement, the person may, notwithstanding the remedies provided by the national laws of those States, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within three years from the first notification of the action giving rise to taxation not in accordance with this Agreement.
(2)
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the national laws of the Contracting States.
(3)
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the application of this Agreement.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 26 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the domestic laws of the Contracting States concerning the taxes to which this Agreement applies insofar as the taxation thereunder is not contrary to this Agreement, or for the prevention of evasion or avoidance of, or fraud in relation to, such taxes. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
(2)
The competent authorities may, through consultation, develop appropriate conditions, methods and techniques concerning the matters in respect of which such exchange of information shall be made. The exchange of information shall be either on a routine basis or on request with reference to particular cases, or both. The competent authorities of the Contracting States may agree from time to time on the list of the information which shall be furnished on a routine basis.
(3)
In no case shall the provisions of paragraph (1) be construed so as to impose on the competent authority of a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 27 Diplomatic and Consular Officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special international agreements.ARTICLE 28 Entry into Force
(1)
This Agreement shall enter into force on the date on which the Contracting States exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in India, as the case may be, and thereupon this Agreement shall have effect:
(a) in Australia:
(i) in respect of withholding tax on incomethat is derived by a non-resident, in relation to income derived on or after 1 July in the calendar year next following that in which the Agreement enters into force; and
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(b) in India, in respect of income, profits or gains arising in any year of income beginning on or after 1 April in the calendar year next following that in which the Agreement enters into force.
(2)
The Agreement made between the Government of Australia and the Government of the Republic of India for the Avoidance of Double Taxation of Income derived from International Air Transport signed at Canberra on 31 May 1983 (in this Article called "the 1983 Agreement") shall cease to have effect with respect to taxes to which this Agreement applies when the provisions of this Agreement become effective in accordance with paragraph (1).
(3)
The 1983 Agreement shall terminate on the expiration of the last date on which it has effect in accordance with the foregoing provisions of this Article.
ARTICLE 29 Termination
This Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July in the calendar year next following that in which the notice of termination is given; and
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in India, in respect of income, profits or gains arising in any year of income beginning on or after 1 April in the calendar year next following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this agreement.
DONE in duplicate at CANBERRA this TWENTY-FIFTH day of July One thousand nine hundred and ninety-one, in the English and Hindi languages, both texts being equally authentic, the English text to be the operative one in any case of doubt.
FOR THE GOVERNMENT OF AUSTRALIA:
JOHN KERINFOR THE GOVERNMENT OF THE REPUBLIC OF INDIA:
AKBAR MIRZA KHALEELI
Sch 35 inserted by No 214 of 1991. The Indian agreement entered into force on 30 December 1991.
(Repealed by No 45 of 2011)
History
Sch 36 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Polish Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 36 formerly read:
SCHEDULE 36 - Polish Agreement
Section 3
AGREEMENT BETWEEN AUSTRALIA AND THE REPUBLIC OF POLAND FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes Covered
1.
The existing taxes to which this Agreement shall apply are:
(a) in Australia:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of the Commonwealth of Australia;
(b) in Poland:
(i) the income tax (podatek dochodowy);
(ii) the tax on wages and salaries (podatek od wynagrodzen);
(iii) the equalisation tax (podatek wyrownawczy);
(iv) the corporate tax (podatek dochodowy od osob prawnych); and
(v) the agricultural tax (podatek rolny).
2.
This Agreement shall also apply to any identical or substantially similar taxes which are imposed under the federal law of the Commonwealth of Australia or under the law of the Republic of Poland after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in the laws of their respective States relating to taxes on income within a reasonable period of time after such changes.
ARTICLE 3 General Definitions
1.
In 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; andand 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 exploitation of any of the natural resources of the seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "Poland" means the territory of the Republic of Poland, including any area outside its territorial sea within which under the laws of Poland and in accordance with international law the sovereign rights of Poland with respect to the seabed and its subsoil and their natural resources may be exercised;
(c) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" mean Australia or Poland, as the context requires;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Poland, as the context requires;
(g) the term "tax" means Australian tax or Polish tax, as the context requires;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "Polish tax" means tax imposed by Poland, being tax to which this Agreement applies by virtue of Article 2;
(j) the term "international traffic" means any transport by a ship or aircraft except where the ship or aircraft is operated solely between places within one of the Contracting States;
(k) 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 Poland, the Minister of Finance or an authorised representative of the Minister.
2.
In this Agreement, the terms "Australian tax" and "Polish tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes to which this Agreement applies by virtue of Article 2.
3.
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State relating to the taxes to which this Agreement applies, in force at the time of that application.
ARTICLE 4 Residence
1.
For the purposes of this Agreement, a person is a resident of one of the Contracting States if the person is a resident of that Contracting State for the purposes of its tax.
2.
A person is not a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
3.
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the status of the person shall be determined in accordance with the following rules:
(a) the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person;
(b) if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State in which the person has an habitual abode;
(c) if theperson has an habitual abode in both Contracting States or in neither of them, the person shall be deemed to be a resident solely of the Contracting State with which the person's economic and personal relations are the closer.
4.
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
1.
For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
2.
The term "permanent establishment" shall include especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property;
(h) a building site, or a construction, installation or assembly project, which exists for more than 12 months.
3.
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; or
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; or
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; or
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research; or
(f) the maintenance of a fixed place of business solely for any combination of activities mentioned in subparagraphs (a) to (e) if the overall activity of the fixed place of business resulting from this combination is of a preparatory or auxiliary character.
4.
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if:
(a) it carries on supervisory activities in that State for more than 12 months in connection with a building site, or a construction, installation or assembly project, which is being undertaken in that State by another enterprise; or
(b) substantial equipment is used in that State for more than 12 months by, for or under contract with the enterprise.
5.
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph 6 applies - shall be deemed to be a permanent establishment of that enterprise in the firstmentioned State if:
(a) the person has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting, the person manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
6.
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a person who is a broker, general commission agent or any other agent of an independent status and is acting in the ordinary course of the person's business as such a broker or agent.
7.
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
ARTICLE 6 Income from Real Property
1.
Income from real property may be taxed in the Contracting State in which the real property is situated.
2.
In this Article, the term "real property", in relation to one of the Contracting States, has the meaning which it has under the laws of that State and includes:
(a) a lease of land and any other interest in or over land including a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine such deposits or resources; and
(b) a right to receive variable or fixed payments either as consideration for the exploitation of or the right to explore for or exploit, or in respect of the exploitation of, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources.Ships and aircraft shall not be regarded as real property.
3.
Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
4.
The provisions of paragraphs 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 professional services.
ARTICLE 7 Business Profits
1.
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
2.
Subject to the provisions of paragraph 3, where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
3.
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
4.
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5.
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
6.
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
7.
Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits from insurance with non-residents provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
8.
Where:
(a) a resident of one of the Contracting States is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated therein and that share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Ships and Aircraft
1.
Profits from the operation of ships or aircraft in international traffic derived by a resident of one of the Contracting States shall be taxable only in that State.
2.
Notwithstanding the provisions of paragraph 1, such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
3.
The provisions of paragraphs 1 and 2 shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organisation or in an international operating agency.
4.
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
ARTICLE 9 Associated Enterprises
1.
Where:
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting Statesand an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2.
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the income to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
3.
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph 1 or 2, in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the firstmentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the firstmentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
1.
Dividends paid by a company which is a resident of one of the Contracting States for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
Such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends.
3.
The term "dividends" in this Article means income from shares or other rights to participate in profits and not relating to debt claims, as well as other income which is subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribution is a resident.
4.
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State professional services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In any such case the provisions of Article 7 or 14, as the case may be, shall apply.
5.
Where a company which is a resident of one of the Contracting States derives profits, income or gains from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are beneficially owned by a resident of that other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company's undistributed profits to tax, even if the dividends paid or the undistributed profits consist wholly or partly of profits, income or gains arising in that other State.
ARTICLE 11 Interest
1.
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3.
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to income from money lent by the law, relating to tax, of the Contracting State in which the income arises.
4.
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated therein, or performs in that other State professional services from a fixed base situated therein, and the indebtedness in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or 14, as the case may be, shall apply.
5.
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of one of the Contracting States or not, has in one of the Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6.
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 12 Royalties
1.
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
Such royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
3.
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; or
(b) the use of, or the right to use, any industrial, commercial or scientific equipment; or
(c) the supply of scientific, technical, industrial or commercial knowledge or information; or
(d) the supply of any assistance that is 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); or
(e) the use of, or the right to use:
(i) motion picture films; or
(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.
4.
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated therein, or performs in that other State professional services from a fixed base situated therein, and the property or right in respect of which the royalties are paid or credited is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or 14, as the case may be, shall apply.
5.
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of one of the Contracting States or not, has in one of the Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6.
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of Property
1.
Income or gains derived by a resident of one of the Contracting States from the alienation of real property referred to in Article 6 and, as provided in that Article, situated in the other Contracting State may be taxed in that other State.
2.
Income or gains from the alienation of property, other than real property referred to in Article 6, that forms part of the business property of a permanent establishment which an enterprise of one of the Contracting States has in the other Contracting State or pertains to a fixed base available to a resident of the firstmentioned State in that other State for the purpose of performing independent professional services, including income or gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base, may be taxed in that other State.
3.
Income or gains from the alienation of ships or aircraft operated in international traffic, or of property other than real property referred to in Article 6 pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise which operated those ships or aircraft is a resident.
4.
Income or gains derived by a resident of one of the Contracting States from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of real property in the other Contracting State of a kind referred to in Article 6, may be taxed in that other State.
5.
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of property other than that to which any of paragraphs 1, 2, 3 and 4 apply.
ARTICLE 14 Independent Personal Services
1.
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless a fixed base is regularly available to the individual in the other Contracting State for the purpose of performing the individual's activities. If such a fixed base is available to the individual, the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base.
2.
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
1.
Subject to the provisions of Articles 16, 18, 19 and 21, salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
2.
Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the firstmentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the year of income of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State.
3.
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that State.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a person who is a resident of one of the Contracting States in the person's capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers
1.
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
2.
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
3.
Notwithstanding the provisions of paragraphs 1 and 2, income derived in respect of the activities referred to in paragraph 1 within the framework of a cultural or sports exchange program agreed to by the Governments of the Contracting States shall be exempted from tax in the Contracting State in which these activities are exercised.
ARTICLE 18 Pensions and Annuities
1.
Pensions (including government pensions) and annuities paid to a resident of one of the Contracting States shall be taxable only in that State.
2.
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
3.
Any alimony or other maintenance payment arising in one of the Contracting States and paid to a resident of the other Contracting State shall be taxable only in the firstmentioned State.
ARTICLE 19 Government Service
1.
Remuneration, other than a pension or annuity, paid by one of the Contracting States or a political subdivision or local authority of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
2.
The provisions of paragraph 1 shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by one of the Contracting States or a political subdivision or local authority of that State. In such a case, the provisions of Article 15 or 16, as the case may be, shall apply.
ARTICLE 20 Students
Where a student, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purposeof his or her education, receives payments from sources outside that other State for the purpose of his or her maintenance or education, those payments shall be exempt from tax in that other State.ARTICLE 21 Professors and Teachers
1.
Where a professor or teacher who is a resident of a Contracting State visits the other Contracting State for a period not exceeding two years for the purpose of teaching or carrying out advanced study or research at a university, college, school or other educational institution in that other State, any remuneration the person receives for such teaching, advanced study or research shall be exempt from tax in that other State to the extent to which that remuneration is, or upon the application of this Article will be, subject to tax in the firstmentioned State.
2.
This Article shall not apply to remuneration which a professor or teacher receives for conducting research if the research is undertaken primarily for the private benefit of a specific person or persons.
ARTICLE 22 Income Not Expressly Mentioned
1.
Items of income of a resident of one of the Contracting States which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable only in that State but, to the extent that those items are derived from sources in the other Contracting State, they may also be taxed in that other State.
2.
The provisions of paragraph 1 shall not apply to income derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
ARTICLE 23 Source of Income
Income, profits or gains derived by a resident of one of the Contracting States which, under any one or more of Articles 6 to 8, 10 to 19 and 22, may be taxed in the other Contracting State shall, for the purposes of Article 24 and of the law of each Contracting State relating to its tax, be deemed to be income from sources in that other State.ARTICLE 24 Methods of Elimination of Double Taxation
1.
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Polish tax paid under the law of Poland and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Poland shall be allowed as a credit against Australian tax payable in respect of that income.
2.
Where a company which is a resident of Poland and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 per cent of the voting power of the firstmentioned company, the credit referred to in paragraph 1 shall include the Polish tax paid by that firstmentioned company in respect of that portion of its profits out of which the dividend is paid.
3.
Where a resident of Poland derives income which under this Agreement may be taxed in Australia, Poland shall deduct from the Polish tax payable in respect of that income an amount equal to the Australian tax paid in respect of that income. Such deduction shall not, however, exceed the Polish tax, computed before the deduction is made, payable in respect of that income.
ARTICLE 25 Mutual Agreement Procedure
1.
Where a person who is a resident of one of the Contracting States considers that the actions of the competent authority of one or both of the Contracting States result or will result for the person in taxation not in accordance with this Agreement, the person may, notwithstanding the remedies provided by the national laws of those States, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within 3 years from the first notification of the action giving rise to taxation not in accordance with this Agreement.
2.
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the national laws of the Contracting States.
3.
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the application of this Agreement.
4.
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 26 Exchange of Information
1.
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the domestic laws of the Contracting States concerning the taxes to which this Agreement applies in so far as the taxation thereunder is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
2.
In no case shall the provisions of paragraph 1 be construed so as to impose on the competent authority of a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State; or
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; or
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 27 Diplomatic and Consular Officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special international agreements.ARTICLE 28 Entry into Force
1.
This Agreement shall be ratified and the instruments of ratification shall be exchanged at Warsaw.
2.
This Agreement shall enter into force on the date of the exchange of instruments of ratification and its provisions shall have effect:
(a) in respect of withholding tax imposed by a Contracting State on income that is derived by a non-resident of that State, in relation to income derived on or after 1 January; and
(b) in respect of other tax, in relation to profits, income or gains of any year of income beginning:
(i) in the case of Australia, on or after 1 July; and
(ii) in the case of Poland, on or after 1 January,in the calendar year next following that in which the exchange of instruments of ratification takes place.
ARTICLE 29 Termination
This Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in respect of withholding tax imposed by a Contracting State on income that is derived by a non-resident of that State, in relation to income derived on or after 1 January; and
(b) in respect of other tax, in relation to profits, income or gains, of any year of income beginning:
(i) in the case of Australia, on 1 July; and
(ii) in the case of Poland, on 1 January,in the calendar year next following that in which the notice of termination is given.
IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.
DONE in duplicate at CANBERRA, this SEVENTH day of MAY, One thousand nine hundred and ninety-one in the English and Polish languages both texts being equally authentic.
FOR AUSTRALIA:
GARETH EVANSFOR THE REPUBLIC OF POLAND:
KRZYSZTOF SKUBISZEWSKI
Sch 36 inserted by No 214 of 1991. The Polish agreement entered into force on 4 March 1992.
(Repealed by No 45 of 2011)
History
Sch 37 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Indonesian Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 37 formerly read:
SCHEDULE 37 - Indonesian Agreement
Section 3
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE REPUBLIC OF INDONESIA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Agreement shall apply are:
(a) in Indonesia:
the income tax imposed under the Undang-undang Pajak Penghasilan 1984 (Law No. 7 of 1983);
(b) in Australia:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration foror exploitation of petroleum resources, imposed under the federal law of Australia.
(2)
This Agreement shall also apply to any identical or substantially similar taxes which are imposed under the federal law of Australia or the law of Indonesia after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in the laws of the respective States relating to the taxes to which this Agreement applies within a reasonable period of time after those changes.
ARTICLE 3 General Definitions
(1)
In 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; andand 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 exploitation of any of the natural resources of the seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "Indonesia" means the territory under the sovereignty of the Republic of Indonesia and such parts of the continental shelf and the adjacent seas over which the Republic of Indonesia has sovereignty, sovereign rights as well as other rights in accordance with the 1982 United Nations Convention on the Law of the Sea;
(c) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" mean, as the context requires, Australia or Indonesia, the Governments of which have concluded this Agreement;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any entity which is treated as a company or body corporate for tax purposes;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Indonesia, as the context requires;
(g) the term "tax" means Australian tax or Indonesian tax, as the context requires, but does not include any penalty or interest imposed under the law of either Contracting State relating to its tax;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "Indonesian tax" means tax imposed by Indonesia, being tax to which this Agreement applies by virtue of Article 2;
(j) 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 Indonesia, the Minister of Finance or an authorised representative of the Minister.
(2)
The references in paragraph 4 of Article 10, paragraph 4 of Article 11, paragraph 4 of Article 12 and paragraph 3 of Article 22 to a permanent establishment or fixed base situated in one of the Contracting States include references to an enterprise's sales and other business activities referred to in subparagraphs 1(b) and (c) of Article 7 and to an individual's activities referred to in subparagraph 1(b) of Article 14.
(3)
In the application of this Agreement by one of the Contracting States, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State relating to the taxes to which this Agreement applies in force at the time of the application.
ARTICLE 4 Residence
(1)
For the purposes of this Agreement, a person is a resident of one of the Contracting States if the person is a resident of that Contracting State under the law of that State relating to its tax.
(2)
A person is not a resident of one of the Contracting States for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
(3)
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the status of the person shall be determined in accordance with the following rules:
(a) the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person;
(b) if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State in which the person has an habitual abode;
(c) if the person has an habitual abode in both Contracting States or in neither of them, the person shall be deemed to be a resident solely of the Contracting State with which the person's economic and personal relations are closer.
(4)
Where by reason of the provisions of paragraph (1) a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Agreement, the term "permanent establishment", in relation to an enterprise, means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" includes especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources or a place of exploration for natural resources;
(g) a farm, plantation or other place where agricultural, pastoral, forestry or plantation activities are carried on;
(h) an installation, drilling rig or ship used for exploration for or exploitation of natural resources, where that use continues for more than 120 days;
(i) a building site or construction, installation or assembly project or supervisory activities in connection with that site or project, where that site, project or activities exist for more than 120 days;
(j) the furnishing of services, including consultancy services, by an enterprise within one of the Contracting States through employees or other personnel engaged by the enterprise for that purpose, if those services are furnished, for the same or a connected project, within that State for a period or periods aggregating more than 120 days within any 12 month period.
(3)
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage or display of goods or merchandise belonging to the enterprise; or
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage or display; or
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; or
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of activities which have preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(4)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph 5 applies - shall be deemed to be a permanent establishment of that enterprise in the firstmentioned State if:
(a) in so acting, the person manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise; or
(b) the person has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise; or
(c) the person has no such authority, but habitually maintains in the firstmentioned State a stock of goods or merchandise from which the person regularly delivers goods or merchandise on behalf of the enterprise.
(5)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a person who is a broker, general commission agent or any other agent of an independent status and is acting in the ordinary course of the person's business as such a broker or agent. However, when the activities of such a broker or agent are carried on wholly or principally on behalf of that enterprise itself or on behalf of that enterprise and other enterprises controlling, or controlled by or subject to the same common control as, that enterprise, the person will not be considered a broker or agent of an independent status within the meaning of this paragraph.
(6)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
(7)
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph 5 of Article 11 and paragraph 5 of Article 12 of this Agreement whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
ARTICLE 6 Income from Real Property
(1)
Income from real property may be taxed in the Contracting State in which the real property is situated.
(2)
In this Article, the term "real property", in relation to one of the Contracting States, has the meaning which it has under the laws of that State and includes:
(a) a lease of land and any other interest in or over land, whether improved or not, including a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine those deposits or resources; and
(b) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources.Ships, boats and aircraft shall not be regarded as real property.
(3)
Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
(4)
The provisions of paragraph 1 shall also apply to income derived from the direct use, letting or use in any other form of real property.
(5)
The provisions of paragraphs 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.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated in that other State. If the enterprise carries on business in that manner, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to:
(a) that permanent establishment; or
(b) sales in that other State of goods or merchandise of the same or a similar kind as those sold through that permanent establishment; or
(c) other business activities carried on in that other State of the same or a similar kind as those carried on through that permanent establishment.
(2)
Subject to the provisions of paragraph 3, where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated in that other State, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere. However, no such deduction shall be allowed in respect of amounts, if any, paid (otherwise than towards reimbursement of actual expenses) by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission, for specific services performed or for management, or, except in the case of a banking enterprise, by way of interest on money lent to the permanent establishment. Likewise, no account shall be taken, in the determination of the profits of a permanent establishment, of amounts charged, (otherwise than towards reimbursement of actual expenses), by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission for specific services performed or for management, or, except in the case of a banking enterprise, by way of interest on money lent to the head office of the enterprise or any of its other offices.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
Nothing in this Article shall affect the application of any law of one of the Contracting States relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
(6)
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
(7)
Nothing in this Article affects the operation of any law of one of the Contracting States relating to tax imposed on profits derived by nonresidents on insurance premiums collected, or from insurance relating to risks arising or to property, in that State, whether or not that law deems the existence of a permanent establishment in relation to the relevant activity.If the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(8)
Where:
(a) a resident of one of the Contracting States is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other Contracting State,the enterprise carried on by the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated in that other State and that share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Ships and Aircraft
(1)
Profits from the operation of ships or aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph 1, such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
(3)
The provisions of paragraphs 1 and 2 shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organisation or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in one of the Contracting States for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
ARTICLE 9 Associated Enterprises
(1)
Where:
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of the enterprise and taxed accordingly.
(2)
Nothing in this Article shall affect the application of any law of one of the Contracting States relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the income to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
(3)
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph 1 or 2, in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the firstmentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the firstmentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States under the law of that State relating to its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Those dividends may be taxed in the firstmentioned Contracting State and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends. The competent authorities of the Contracting States shall by mutual agreement settle the mode of application of this limitation.
(3)
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the law, relating to tax, of the Contracting State of which the company making the distribution is a resident under that law.
(4)
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or 14, as the case may be, shall apply.
(5)
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except in so far as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. This paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia under the law of Australia relating to its tax and which is also a resident of Indonesia under the law of Indonesia relating to its tax.
(6)
Notwithstanding any other provisions of this Agreement, where a company which is a resident of one of the Contracting States has a permanent establishment in the other Contracting State, the profits of the permanent establishment may be subjected to an additional tax in that other State in accordance with its law, but the additional tax so charged shall not exceed 15 per cent of the amount of such profits after deducting from those profits the tax imposed on them in that other State.
(7)
The provisions of paragraph 6 of this Article shall not affect the rate of any such additional tax payable under any production sharing contracts and contracts of work (or any other similar contracts) relating to oil and gas or other mineral products negotiated by the Government of Indonesia, its instrumentality, its relevant State oil company or any other entity thereof with a person who is a resident of Australia.
ARTICLE 11 Interest
(1)
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
That interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest. The competent authorities of the Contracting States shall by mutual agreement settle the mode of application of this limitation.
(3)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness and all other income assimilated to income from money lent by the law, relating to tax, of the Contracting State in which the income arises.
(4)
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the indebtedness in respect of which the interest is paid is effectively connected with that permanent establishment or fixed base. In that case, the provisions of Article 7 or 14, as the case may be, shall apply.
(5)
Interest shall be deemed to arise in one of the Contracting States when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State under the law of that State relating to its tax. Where, however, the person paying the interest, whether the person is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment or fixed base, then the interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of that relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
(7)
Interest derived from the investment of official foreign exchange reserve assets by the Government of one of the Contracting States, its monetary institutions or a bank performing central banking functions in that State shall be exempt from tax in the other Contracting State.
ARTICLE 12 Royalties
(1)
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Those royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed:
(a) in the case of royalties described in subparagraphs 3(b) and (c) and, to the extent to which they relate to those royalties, in subparagraphs 3(d) and (f) - 10 per cent; and
(b) in all other cases - 15 per cent.The competent authorities of the Contracting States shall by mutual agreement settle the mode of application of these limitations.
(3)
The term "royalties" in this Article means payments, 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; or
(b) the use of, or the right to use, any industrial, commercial or scientific equipment; or
(c) the supply of scientific, technical, industrial or commercial knowledge or information; or
(d) the supply of any assistance that is ancillary and subsidiary to, and is furnished as a means of enabling the initial application 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); or
(e) the use of, or the right to use:
(i) motion picture films; or
(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.
(4)
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the property or right in respect of which the royalties are paid is effectively connected with that permanent establishment or fixed base. In that case, the provisions of Article 7 or 14, as the case may be, shall apply.
(5)
Royalties shall be deemed to arise in one of the Contracting States when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State under the law of that State relating to its tax. Where, however, the person paying the royalties, whether the person is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid, having regard to what they are paid for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Agreement shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the royalties paid shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
(7)
In this Article, the term "payments" includes credits and the terms "paid", "payer" and "person paying" have the corresponding meanings.
ARTICLE 13 Alienation of Property
(1)
Income, profits or gains derived by a resident of one of the Contracting States from the alienation of real property situated in the other Contracting State may be taxed in that other State.
(2)
Income, profits or gains from the alienation of property, other than real property, that forms part of the business property of a permanent establishment which an enterprise of one of the Contracting States has in the other Contracting State or pertains to a fixed base available in that other State to a resident of the firstmentioned State for the purpose of performing independent personal services, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise) or of that fixed base, may be taxed in that other State.
(3)
Income, profits or gains from the alienation of ships or aircraft operated in international traffic, or of property (other than real property) pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise which operated those ships or aircraft is a resident.
(4)
Income, profits or gains derived by a resident of one of the Contracting States from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of real property situated in the other Contracting State, may be taxed in that other State.
(5)
Nothing in this Agreement affects the application of a law of one of the Contracting States relating to the taxation of gains of a capital nature derived from the alienation of property other than that to which any of the preceding paragraphs of this Article apply.
(6)
(a) In this Article, the term "real property" has the same meaning as it has in Article 6.
(b) The situation of real property shall be determined for the purposes of this Article in accordance with paragraph 3 of Article 6.
ARTICLE 14 Independent Personal Services
(1)
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless:
(a) a fixed base is regularly available to the individual in the other Contracting State for the purpose of performing the individual's activities; in that case, so much of the income as is attributable to activities exercised from that fixed base may also be taxed in the other State; or
(b) the individual is present in that other State for a period or periods exceeding 120 days in any period of 12 months; in that case, so much of the income as is derived from the individual's activities in that other State may also be taxed in that other State.
(2)
The term professional services includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 18, 19 and 20, salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the firstmentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 120 days in any period of 12 months; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State; and
(d) the remuneration is, or upon the application of this Article will be, subject to tax in the firstmentioned State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that State.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a resident of one of the Contracting States as a member of the board of directors or any other similar organ of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
(2)
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
(3)
Notwithstanding the provisions of paragraphs 1 and 2, income derived from activities referred to in paragraph 1 performed under a cultural agreement or arrangement between the Contracting States shall be exempt from tax in the Contracting State in which the activities are exercised if the visit to that State is wholly or substantially supported by funds of the other Contracting State, a local authority or public institution of that other State.
ARTICLE 18 Pensions and Annuities
(1)
Pensions (including government pensions) and annuities paid to a resident of one of the Contracting States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph 1, a pension (including a government pension) or an annuity paid to a resident of one of the Contracting States from sources in the other Contracting State may be taxed in that other State but the tax so charged may not exceed 15 per cent of the gross amount of the pension or annuity.
(3)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
(4)
Any alimony or other maintenance payment arising in one of the Contracting States and paid to a resident of the other Contracting State shall be taxable only in the firstmentioned State.
ARTICLE 19 Government Service
(1)
Remuneration, other than a pension or annuity, paid by one of the Contracting States or a political subdivision or local authority of that State to any individual in respect of services rendered to it shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen or national of that State; or
(b) did not become a resident of the State solely for the purpose of performing the services.
(2)
The provisions of paragraph l shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by one of the Contracting States or a political subdivision or local authority of that State. In that case, the provisions of Article 15 or 16, as the case may be, shall apply.
ARTICLE 20 Professors and Teachers
(1)
Where a professor or teacher who is a resident of one of the Contracting States visits the other Contracting State for a period not exceeding 2 years for the purpose of teaching or carrying out advanced study or research at a university, college, school or other educational institution in that other State, any remuneration the person receives for such teaching, advanced study or research shall be exempt from tax in that other State to the extent to which that remuneration is, or upon the application of this Article will be, subject to tax in the firstmentioned State.
(2)
This Article shall not apply to remuneration which a professor or teacher receives for conducting research if the research is undertaken primarily for the private benefit of a specific person or persons.
ARTICLE 21 Students
Where a student, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of the student's education, receives payments from sources outside that other State for the purpose of the student's maintenance or education, those payments shall be exempt from tax in that other State.ARTICLE 22 Income Not Expressly Mentioned
(1)
Items of income of a resident of one of the Contracting States which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable only in that State.
(2)
However, any such income derived by a resident of one of the Contracting States from sources in the other Contracting State may also be taxed in that other State.
(3)
The provisions of paragraph 1 shall not apply to income derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In that case, the provisions of Article 7 or 14, as the case may be, shall apply.
ARTICLE 23 Source of Income
Income, profits or gains derived by a resident of one of the Contracting States which, under any one or more of Articles 6 to 8, 10 to 19 and 22, may be taxed in the other Contracting State shall, for the purposes of Article 24 and the law of each Contracting State relating to its tax, be deemed to be income from sources in that other State.ARTICLE 24 Methods of Elimination of Double Taxation
(1)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article), Indonesian tax paid under the law of Indonesia and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Indonesia shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
Where a company which is a resident of Indonesia and is not a resident of Australia under the law of Australia relating to its tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than l0 per cent of the voting power of the firstmentioned company, the credit referred to in paragraph 1 shall include the Indonesian tax paid by that firstmentioned company in respect of that portion of its profits out of which the dividend is paid.
(3)
Where a resident of Indonesia derives income from Australia which may be taxed in Australia in accordance with the provisions of this Agreement, the amount of Australian tax payable in respect of that income shall be allowed as a credit against the Indonesian tax imposed on that resident in respect of the income. The amount of credit, however, shall not exceed that part of the Indonesian tax which is appropriate to that income.
(4)
The amount of Australian tax payable on income derived by a resident of Indonesia to whom paragraph 3 applies shall be increased, before the application of that paragraph in that case, by an amount equal to any amount paid by that resident under the Fringe Benefits Tax Act 1986 of Australia.
ARTICLE 25 Mutual Agreement Procedure
(1)
Where a person who is a resident of one of the Contracting States considers that the actions of the competent authority of one or both of the Contracting States result or will result for the person in taxation not in accordance with this Agreement, the person may, notwithstanding the remedies provided by the national laws of those States, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within 3 years from the first notification of the action giving rise to taxation not in accordance with this Agreement.
(2)
The competent authority shall endeavour, if the claim appears to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the national laws of the Contracting States.
(3)
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the application of this Agreement.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 26 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the national laws of the Contracting States concerning the taxes to which this Agreement applies in so far as the taxation under those laws is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of one of the Contracting States shall be treated as secret in the same manner as information obtained under the national laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
(2)
In no case shall the provisions of paragraph 1 be construed so as to impose on the competent authority of one of the Contracting States the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State; or
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; or
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 27 Diplomatic and Consular Officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special international agreements.ARTICLE 28 Miscellaneous
Nothing in this Agreement shall affect the operation of the Treaty between Australia and the Republic of Indonesia on the Zone of Cooperation in an Area between The Indonesian Province of East Timor and Northern Australia, done over the Zone of Cooperation on 11 December 1989.ARTICLE 29 Entry into Force
This Agreement shall enter into force on the date on which the Contracting States exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in Indonesia, as the case may be, and in that event this Agreement shall have effect:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a nonresident, in relation to income derived on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(b) in Indonesia:
(i) in respect of tax withheld at source, on or after 1 July in the calendar year next following that in which the Agreement enters into force; and
(ii) in respect of other Indonesian tax, for taxable years beginning on or after 1 July in the calendar year next following that in which the Agreement enters into force.ARTICLE 30 Termination
This Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in Indonesia:
(i) in respect of tax withheld at source, on or after 1 July in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Indonesian tax, for taxable years beginning on or after 1 July in the calendar year next following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.
DONE in duplicate at Jakarta this Twentysecond day of April One thousand nine hundred and ninety two in the English language.
FOR THE GOVERNMENT OF AUSTRALIA
PHILIP FLOODFOR THE GOVERNMENT OF THE REPUBLIC OF INDONESIA
ALI ALATAS
Sch 37 inserted by No 139 of 1992.
(Repealed by No 45 of 2011)
History
Sch 38 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Vietnamese Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 38 formerly read:
SCHEDULE 38 - Vietnamese Agreement
Section 3
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Agreement shall apply are:
(a) in Australia:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of Australia;
(b) in Vietnam:
(i) the income tax;
(ii) the profit tax; and
(iii) the withholding tax.
(2)
This Agreement shall also apply to any identical or substantially similar taxes on income, profits or gains which are imposed under the federal law of Australia or the law of Vietnam after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in the laws of their respective States relating to the taxes to which this Agreement applies within a reasonable period of time after those changes.
ARTICLE 3 General Definitions
(1)
In 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; andand 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 seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "Vietnam" means the Socialist Republic of Vietnam, and, when used in a geographical sense, includes national territory and any area adjacent to the territorial waters of Vietnam and beyond the territorial limit of Vietnam which in accordance with international law has been designated an area within which the rights of the Socialist Republic of Vietnam with respect to the exploration and the exploitation of any natural resources of the seabed and subsoil and water surface may be exercised;
(c) the term "Contracting State" means Australia or Vietnam, as the context requires, the Governments of which have concluded this Agreement;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any entity which is treated as a company or body corporate for tax purposes;
(f) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Vietnam, as the context requires;
(g) the term "tax" means Australian tax or Vietnamese tax, as the context requires, but does not include any penalty or interest imposed under the law of either Contracting State relating to its tax;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this agreement applies by virtue of Article 2;
(i) the term "Vietnamese tax" means tax imposed by Vietnam, being tax to which this Agreement applies by virtue of Article 2;
(j) 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 Vietnam, the Minister of Finance or an authorised representative of the Minister.
(2)
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State from time to time in force relating to the taxes to which this Agreement applies.
ARTICLE 4 Residence
(1)
For the purposes of this Agreement, a person is a resident of a Contracting State:
(a) in the case of Australia, if the person is a resident of Australia for the purposes of Australian tax; and
(b) in the case of Vietnam, if the person is liable, under the law of Vietnam, to tax therein by reason of the person's domicile, residence, place of management or any other criterion of a similar nature.HistoryArt 4(1) amended by No 118 of 1993.
(2)
A person is not a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
(3)
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the status of the person shall be determined in accordance with the following rules:
(a) the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person;
(b) if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State with which the person's economic and personal relations are closer.
(4)
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Agreement, the term "permanent establishment", in relation to an enterprise, means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property; and
(h) a building site or construction, installation or assembly project which exists for more than 183 days.
(3)
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; or
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; or
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; or
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(4)
An enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if:
(a) it carries on supervisory activities in that State for more than 183 days in connection with a building site, or a construction, installation or assembly project, which is being undertaken in that State; or
(b) substantial equipment is being used in that State by, for or under contract with the enterprise.
(5)
A person acting in a Contracting State on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph 6 applies - shall be deemed to be a permanent establishment of that enterprise in the firstmentioned State if:
(a) the person has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchasing of goods or merchandise for the enterprise; or
(b) in so acting, the person manufactures or processes in that State for the enterprise goods ormerchandise belonging to that enterprise.
(6)
An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a person who is a broker, general commission agent or any other agent of an independent status and is acting in the ordinary course of the person's business as such a broker or agent.
(7)
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
(8)
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph 5 of Article 11 and paragraph 5 of Article 12 whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of a Contracting State, has a permanent establishment in a Contracting State.HistoryArt 5 amended by No 129 of 2002.
ARTICLE 6 Income from Real Property
(1)
Income from real property may be taxed in the Contracting State in which the real property is situated.
(2)
In this Article, the term "real property":
(a) in the case of Australia, has the meaning which it has under the laws of Australia and includes:
(i) a lease of land and any other interest in or over land, whether improved or not, including a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine those deposits or resources; and
(ii) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources;
(b) in the case of Vietnam, means property which according to the laws of Vietnam is immovable property, and includes:
(i) property accessory to immovable property;
(ii) rights to which the provisions of general law in respect of landed property apply; and
(iii) usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work mineral deposits, sources, and other natural resources;
(c) does not include ships and aircraft.
(3)
Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
(4)
The provisions of paragraph 1 apply to income derived from the direct use, letting or use in any other form, of real property.
(5)
The provisions of paragraphs 1, 3 and 4 also apply to income from real property of an enterprise and to income from real property used for the performance of independent personal services.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated in that other State. If the enterprise carries on business in that manner, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated in that other State, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
(6)
Where profits include items of income or gains which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
(7)
Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits from insurance with non-residents provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(8)
Where:
(a) a resident of a Contracting State is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated in that other State and that share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Ships and Aircraft
(1)
Profits from the operation of ships or aircraft derived by a resident of a Contracting State shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph 1, such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
(3)
The provisions of paragraphs 1 and 2 shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of a Contracting State through participation in a pool service, in a joint transport operating organization or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
ARTICLE 9 Associated Enterprises
(1)
Where:
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the income to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
(3)
Where profits on which an enterprise of a Contracting State has been charged to tax in that State are also included, by virtue of paragraph 1 or 2, in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the firstmentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the firstmentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.HistoryArt 9(3) amended by No 80 of 1997.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of a Contracting State for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Those dividends may be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed, in Australia, 15 per cent, and, in Vietnam, 10 per cent, of the gross amount of the dividends.
(3)
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the law, relating to tax, of the Contracting State of which the company making the distribution is a resident for the purposes of its tax.
(4)
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or 14, as the case may be, shall apply.
(5)
Dividends paid by a company which is a resident of a Contracting State, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except in so far as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. This paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Vietnam for the purposes of Vietnamese tax.
ARTICLE 11 Interest
(1)
Interest arising in a Contracting State, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
That interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, interest from any other form of indebtedness and all other income assimilated to income from money lent by the law, relating to tax, of the Contracting State in which the income arises.
(4)
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the interest, being a resident of a Contracting State, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the indebtedness in respect of which the interest is paid is effectively connected with that permanent establishment or fixed base. In that case, the provisions of Article 7 or 14, as the case may be, shall apply.
(5)
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment or fixed base, then the interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of that relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 12 Royalties
(1)
Royalties arising in a Contracting State, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Those royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
(3)
The term "royalties" in this Article meanspayments 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; or
(b) the use of, or the right to use, any industrial, commercial or scientific equipment; or
(c) the supply of scientific, technical, industrial or commercial knowledge or information; or
(d) the supply of any assistance that is 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); or
(e) the use of, or the right to use:
(i) motion picture films; or
(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.
(4)
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the royalties, being a resident of a Contracting State, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the property or right in respect of which the royalties are paid or credited is effectively connected with that permanent establishment or fixed base. In that case, the provisions of Article 7 or 14, as the case may be, shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of Property
(1)
Income, profits or gains derived by a resident of a Contracting State from the alienation of real property situated in the other Contracting State may be taxed in that other State.
(2)
Income, profits or gains from the alienation of property, other than real property, that forms part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or pertains to a fixed base available in that other State to a resident of the firstmentioned State for the purpose of performing independent personal services, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise) or of that fixed base, may be taxed in that other State.
(3)
Income, profits or gains from the alienation of ships or aircraft operated in international traffic, or of property (other than real property) pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise which operated those ships or aircraft is a resident.
(4)
Income, profits or gains derived by a resident of a Contracting State from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of real property situated in the other Contracting State, may be taxed in that other State.
(5)
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of property other than that to which any of the preceding paragraphs of this Article apply.
(6)
In this Article, the term "real property" has the same meaning as it has in Article 6.
(7)
The situation of real property shall be determined for the purposes of this Article in accordance with paragraph 3 of Article 6.
ARTICLE 14 Independent Personal Services
(1)
Income derived by an individual who is a resident of a Contracting State in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless a fixed base is regularly available to the individual in the other Contracting State for the purpose of performing the individual's activities. If such a fixed base is available to the individual, the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base.
(2)
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by an individual who is a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the firstmentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the year of income of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State; and
(d) the remuneration is, or upon the application of this Article will be, subject to tax in the firstmentioned State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of a Contracting State may be taxed in that State.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a resident of a Contracting State as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
(2)
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
ARTICLE 18 Pensions and Annuities
(1)
Pensions (including government pensions) and annuities paid to a resident of a Contracting State shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
(3)
Any alimony or other maintenance payment arising in a Contracting State and paid to a resident of the other Contracting State shall be taxable only in the firstmentioned State.
ARTICLE 19 Government Service
(1)
Remuneration, other than a pension or annuity, paid by a Contracting State or a political subdivision or local authority of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen or national of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
(2)
The provisions of paragraph 1 shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by a Contracting State or a political subdivision or local authority of that State. In that case, the provisions of Article 15 or 16, as the case may be, shall apply.
ARTICLE 20 Students
Where a student, who is a resident of a Contracting State or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of the student's education, receives payments from sources outside that other State for the purpose of the student's maintenance or education, those payments shall be exempt from tax in that other State.ARTICLE 21 Income Not Expressly Mentioned
(1)
Items of income of a resident of a Contracting State which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable only in that State.
(2)
However, any such income derived by a resident of a Contracting State from sources in the other Contracting State may also be taxed in that other State.
(3)
The provisions of paragraph 1 shall not apply to income, other than income from real property as defined in paragraph 2 of Article 6, derived by a resident of a Contracting State where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In that case, the provision of Article 7 or 14, as the case may be, shall apply.
ARTICLE 22 Source of Income
(1)
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8, 10 to 19 and 21, may be taxed in the other Contracting State shall for the purposes of the law of that other Contracting State relating to its tax be deemed to be income from sources in that other Contracting State.
(2)
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8, 10 to 19 and 21, may be taxed in the other Contracting State shall for the purposes of Article 23 and of the law of the firstmentioned Contracting State relating to its tax be deemed to be income from sources in the other Contracting State.
ARTICLE 23 Methods of Elimination of Double Taxation
(1)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article), Vietnamese tax paid under the law of Vietnam and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Vietnam shall be allowed as a credit against Australian tax payable in respect of that income.
(2)
Where a company which is a resident of Vietnam and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 per cent of the voting power of the firstmentioned company, the credit referred to in paragraph 1 shall include the Vietnamese tax paid by that firstmentioned company in respect of that portion of its profits out of which the dividend is paid.
(3)
For the purposes of paragraphs 1 and 2, Vietnamese tax paid shall include an amount equivalent to the amount of any Vietnamese tax forgone.
(4)
In paragraph 3, the term "Vietnamese tax forgone" means, subject to paragraphs 5 and 6, the total amount which, under the law of Vietnam relating to Vietnamese tax and in accordance with this Agreement, would have been payable as Vietnamese tax on income but for an exemption from, or reduction of, Vietnamese tax on that income (which total amount shall be deemed to be no greater than 20 per cent of the Vietnamese taxable income that relates to the income the subject of the exemption or reduction), less the actual amount of Vietnamese tax payable on that income.HistoryArt 23(4) substituted by Sch 38A (the Vietnamese exchange of notes).
(5)
Paragraph 4 shall apply only in respect of exemptions or reductions resulting from the operation of:
(a)
(i) Articles 26, 27, 28 or 32 of the Law on Foreign Investment in Vietnam 1987; or
(ii) Articles 66, 67, 68, 69 or 72 of Decree No. 18-CP on implementing regulations of the Law on Foreign Investment in Vietnam dated 16 April 1993; or
(iii) Circular No. 48-TC-TCT on Profits Tax Rates and Exemption from and Reduction of Profits Tax dated 30 June 1993; or
(iv) Part A of Part II of Circular No. 51-TC-TCT on Taxation of Foreign Investment in Vietnam dated 3 July 1993; orto the extent those provisions were in force on, and have not been modified since, the date of this Note, or have been modified only in minor respects so as not to affect their general character; or
(v) Decree No. 87-CP on Build-Operate-Transfer (BOT) Contracts dated 23 November 1993 and the regulations issued with that Decree,
(b) any other provision which may subsequently be made granting an exemption from, or reduction of, Vietnamese tax which the Treasurer of Australia and the Minister of Finance of Vietnam determine from time to time in letters exchanged for this purpose to be provisions to which this paragraph applies. Subject to its terms, such a determination of applicable provisions shall be valid for as long as those provisions are not modified after the date of that determination or have been modified only in minor respects so as not to affect their general character.HistoryArt 23(5) substituted by Sch 38A (the Vietnamese exchange of notes).
(6)
Paragraph 4 shall apply only to the extent that the exemption or reduction is granted in respect of Vietnamese tax on income from the following activities:
(a) construction of infrastructure facilities including communications, power production and supply, construction of infrastructure facilities for the export processing and industry intensive zones and information and telecommunication facilities in mountainous areas in which naturally and socio economically difficult conditions exist; or
(b) plantation of new forests for commercial exploitation; or
(c) extremely important activities listed in the investment portfolio announced by the Vietnamese State Committee for Co-operation and Investment for each period; or
(d) exploitation of natural resources except oil, gas or rare and precious natural resources; or
(e) heavy industry projects including metallurgy, mechanical engineering production, base chemical production, cement production, electrical and electronic materials manufacturing, fertiliser manufacturing and anti epidemic medicines for use in animal production or forestry; or
(f) plantation of long term industrial crops; or
(g) activities in mountainous areas in which naturally and socio economically difficult conditions exist including hotel undertaking projects; or
(h) any project satisfying at least 2 of the following criteria:
(i) employing at least 500 Vietnamese; or
(ii) applying advanced technology which satisfies the requirements listed in Article 4 of the Ordinance on the Transfer of Foreign Technology dated 5 December 1988, subject to the approval of the Ministry of Science and Technology and Environment; or
(iii) exporting at least 80% of the products manufactured by the project itself; or
(iv) the prescribed capital or contributed capital for the implementation of the business co-operation contract is at least US $10 million dollars; or
(j) projects carrying out infrastructure activities within a definite time period in which the foreign partner transfers the infrastructure to the Vietnamese Government without any compensation.HistoryArt 23(6) inserted by Sch 38A (the Vietnamese exchange of notes).
(7)
Notwithstanding the operation of paragraph 4, Vietnamese tax forgone shall not be deemed to have been paid in respect of income derived from:
(a) banking, insurance, consulting, accounting, auditing and commercial services of any kind; or
(b) the operation of ships or aircraft, other than ships or aircraft operated principally from places in Vietnam and used solely in carrying on a business in Vietnam; or
(c) any scheme entered into by an Australian resident with the purpose of using Vietnam as a conduit for income or as a location of property in order to evade or avoid Australian tax through the exploitation of the Australian foreign tax credit provisions or to confer a benefit on a person who is neither a resident of Australia, nor of Vietnam.HistoryArt 23(7) inserted by Sch 38A (the Vietnamese exchange of notes).
(8)
Paragraphs 4, 5, 6 and 7 shall not apply in relation to income derived in any year of income after the year of income that ends on:
(a) 30 June 2003; or
(b) any later date that may be agreed by the Treasurer of Australia and the Minister of Finance of Vietnam in letters exchanged for this purpose,whichever is the later in time occurring.
HistoryArt 23(8) inserted by Sch 38A (the Vietnamese exchange of notes).
(9)
Where a resident of Vietnam derives income, profits or gains which under the law of Australia and in accordance with this agreement may be taxed in Australia, Vietnam shall allow as a credit against its tax on the income, profits or gains an amount equal to the tax paid in Australia.HistoryArt 23(9) renumbered from Art 23(6) by Sch 38A (the Vietnamese exchange of notes).
ARTICLE 24 Mutual Agreement Procedure
(1)
Where a person who is a resident of a Contracting State considers that the actions of the competent authority of one or both of the Contracting States result or will result for the person in taxation not in accordance with this Agreement, the person may, notwithstanding the remedies provided by the national laws of those States, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within 3 years from the first notification of the action giving rise to taxation not in accordance with this Agreement.
(2)
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the national laws of the Contracting States.
(3)
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the application of this Agreement.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 25 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the national laws of the Contracting States concerning the taxes to which this Agreement applies in so far as the taxation under those laws is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the national laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
(2)
In no case shall the provisions of paragraph 1 be construed so as to impose on the competent authority of a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State; or
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; or
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 26 Diplomatic and Consular Officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special international agreements.ARTICLE 27 Entry into Force
This Agreement shall enter into force on the date on which the Contracting States exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in Vietnam, as the case may be, and, in that event, this Agreement shall have effect:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(b) in Vietnam:
(i) in respect of taxes withheld at source, in relation to taxable amounts paid on or after 1 January following the calendar year in which the Agreement enters into force;
(ii) in respect of other Vietnamese tax, in relation to income, profits or gains arising in the calendar year following the calendar year in which the Agreement enters into force, and in subsequent calendar years.ARTICLE 28 Termination
The Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in Vietnam:
(i) in respect of taxes withheld at source, in relation to taxable amounts paid on or after 1 January following the calendar year in which the notice of termination is given;
(ii) in respect of other Vietnamese tax, in relation to income, profits or gains arising in the calendar year following the calendar year in which the notice of termination is given, and in subsequent calendar years.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.
DONE in duplicate at Hanoi, this thirteenth day of April, One thousand nine hundred and ninety-two in the English and Vietnamese languages, both texts being equally authentic.
FOR THE GOVERNMENT OF AUSTRALIA:
JOHN SYDNEY DAWKINS
Minister of State for the TreasuryFOR THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM:
HOANG QUY
Minister of Ministry of Finance
Sch 38 inserted by No 139 of 1992.
(Repealed by No 45 of 2011)
History
Sch 38A repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Vietnamese Agreement - Exchange of Notes from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 38A formerly read:
SCHEDULE 38A - Vietnamese Agreement - Exchange of Notes
EXCHANGE OF NOTES BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM AMENDING THE AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE SOCIALIST REPUBLIC OF VIETNAM FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE I
Paragraph 4 shall be deleted and replaced with the following:
"4.
In paragraph 3, the term "Vietnamese tax forgone" means, subject to paragraphs 5 and 6, the total amount which, under the law of Vietnam relating to Vietnamese tax and in accordance with this Agreement, would have been payable as Vietnamese tax on income but for an exemption from, or reduction of, Vietnamese tax on that income (which total amount shall be deemed to be no greater than 20 per cent of the Vietnamese taxable income that relates to the income the subject of the exemption or reduction), less the actual amount of Vietnamese tax payable on that income."ARTICLE II
Paragraph 5 shall be deleted and replaced with the following:
"5.
Paragraph 4 shall apply only in respect of exemptions or reductions resulting from the operation of:
(a)
(i) Articles 26, 27, 28 or 32 of the Law on Foreign Investment in Vietnam 1987; or
(ii) Articles 66, 67, 68, 69 or 72 of Decree No. 18-CP on implementing regulations of the Law on Foreign Investment in Vietnam dated 16 April 1993; or
(iii) Circular No. 48-TC-TCT on Profits Tax Rates and Exemption from and Reduction of Profits Tax dated 30 June 1993; or
(iv) Part A of Part II of Circular No. 51-TC-TCT on Taxation of Foreign Investment in Vietnam dated 3 July 1993; orto the extent those provisions were in force on, and have not been modified since, the date of this Note, or have been modified only in minor respects so as not to affect their general character; or
(v) Decree No. 87-CP on Build-Operate-Transfer (BOT) Contracts dated 23 November 1993 and the regulations issued with that Decree,
(b) any other provision which may subsequently be made granting an exemption from, or reduction of, Vietnamese tax which the Treasurer of Australia and the Minister of Finance of Vietnam determine from time to time in letters exchanged for this purpose to be provisions to which this paragraph applies. Subject to its terms, such a determination of applicable provisions shall be valid for as long as those provisions are not modified after the date of that determination or have been modified only in minor respects so as not to affect their general character."ARTICLE III
The following paragraphs shall be inserted after paragraph 5:
"6.
Paragraph 4 shall apply only to the extent that the exemption or reduction is granted in respect of Vietnamese tax on income from the following activities:
(a) construction of infrastructure facilities including communications, power production and supply, construction of infrastructure facilities for the export processing and industry intensive zones and information and telecommunication facilities in mountainous areas in which naturally and socio economically difficult conditions exist; or
(b) plantation of new forests for commercial exploitation; or
(c) extremely important activities listed in the investment portfolio announced by the Vietnamese State Committee for Co-operation and Investment for each period; or
(d) exploitation of natural resources except oil, gas or rare and precious natural resources; or
(e) heavy industry projects including metallurgy, mechanical engineering production, base chemical production, cement production, electrical and electronic materials manufacturing, fertiliser manufacturing and anti epidemic medicines for use in animal production or forestry; or
(f) plantation of long term industrial crops; or
(g) activities in mountainous areas in which naturally and socio economically difficult conditions exist including hotel undertaking projects; or
(h) any project satisfying at least 2 of the following criteria:
(i) employing at least 500 Vietnamese; or
(ii) applying advanced technology which satisfies the requirements listed in Article 4 of the Ordinance on the Transfer of Foreign Technology dated 5 December 1988, subject to the approval of the Ministry of Science and Technology and Environment; or
(iii) exporting at least 80% of the products manufactured by the project itself; or
(iv) the prescribed capital or contributed capital for the implementation of the business co-operation contract is at least US $10 million dollars; or
(j) projects carrying out infrastructure activities within a definite time period in which the foreign partner transfers the infrastructure to the Vietnamese Government without any compensation.
7.
Notwithstanding the operation of paragraph 4, Vietnamese tax forgone shall not be deemed to have been paid in respect of income derived from:
(a) banking, insurance, consulting, accounting, auditing and commercial services of any kind; or
(b) the operation of ships or aircraft, other than ships or aircraft operated principally from places in Vietnam and used solely in carrying on a business in Vietnam; or
(c) any scheme entered into by an Australian resident with the purpose of using Vietnam as a conduit for income or as a location of property in order to evade or avoid Australian tax through the exploitation of the Australian foreign tax credit provisions or to confer a benefit on a person who is neither a resident of Australia, nor of Vietnam.
8.
Paragraphs 4, 5, 6 and 7 shall not apply in relation to income derived in any year of income after the year of income that ends on:
(a) 30 June 2003; or
(b) any later date that may be agreed by the Treasurer of Australia and the Minister of Finance of Vietnam in letters exchanged for this purpose,whichever is the later in time occurring."
ARTICLE IV
Paragraph 6 shall be renumbered as paragraph 9.If the foregoing is acceptable to the Government of the Socialist Republic of Vietnam, the Department has the honour to propose that this Note and the Embassy's confirmatory Note in reply shall constitute an Agreement between the Government of Australia and the Government of the Socialist Republic of Vietnam to amend the Head Agreement. The amendment to the Head Agreement shall enter into force when the two Governments have notified each other by a further exchange of notes that they have completed their domestic requirements for the entry into force of such amendment. The amendment to the Head Agreement shall have effect in respect of Australian tax in relation to income, profits or gains of the year of income that began on 1 July 1993 and of subsequent years of income.
The Department of Foreign Affairs and Trade avails itself of this opportunity to renew to the Embassy of the Socialist Republic of Vietnam the assurances of its highest consideration.
CANBERRA
22 November 1996
Note in Reply
The Embassy of the Socialist Republic of Vietnam presents its compliments to the Department of Foreign Affairs and Trade and has the honour to refer to the Department's Note No ALA 96/568 of 22 November 1996 which reads as follows:
"[Text of Note No ALA 96/568 of 22 November 1996 of the Department of Foreign Affairs and Trade of the Government of Australia.]"
The Embassy has the honour to advise that the Department's proposal is acceptable to the Government of the Socialist Republic of Vietnam and that accordingly the Agreement between the Government of Australia and the Government of the Socialist Republic of Vietnam for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income, done at Hanoi on 13 April 1992, is to be regarded as amended from the date when the two Governments have notified each other by a further exchange of notes that they have completed their domestic requirements for the entry into force of such amendment. The amendment to the Head Agreement shall have effect in respect of Australian tax in relation to income, profits or gains of the year of income that began on 1 July 1993 and of subsequent years of income.
The Embassy of the Socialist Republic of Vietnam avails itself of this opportunity to renew to the Department of Foreign Affairs and Trade the assurances of its highest consideration.
CANBERRA
22 November 1996
Sch 38A inserted by No 80 of 1997.
(Repealed by No 45 of 2011)
History
Sch 39 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Spanish Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 39 formerly read:
SCHEDULE 39 - Spanish Agreement
Section 3
AGREEMENT BETWEEN AUSTRALIA AND THE KINGDOM OF SPAIN FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal Scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes Covered
(1)
The existing taxes to which this Agreement shall apply are:
(a) in the case of Australia:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of the Commonwealth of Australia;
(b) in the case of Spain:
(i) the Income Tax on Individuals (el Impuesto sobre la renta de las Personas Fisicas); and
(ii) the Corporation Tax (el Impuesto sobre sociedades).
(2)
This Agreement shall also apply to any identical or substantially similar taxes which are imposed under the federal law of the Commonwealth of Australia or the law of Spain after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in the laws of the respective States relating to the taxes to which this Agreement applies within a reasonable time after such changes.
ARTICLE 3 General Definitions
(1)
In 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; andand includes any area adjacent to the territorial limits of Australia (including the Territories specified in subparagraphs (i) to (vi) inclusive) in respect of which there is for the time being in force, consistently with international law, a law of Australia dealing with the exploitation of any of the natural resources of the seabed and subsoil of the continental shelf and superjacent waters;
(vi) the Coral Sea Islands Territory,
(b) the term "Spain" means the Spanish State and, when used geographically, means the territory of the Spanish State including any area outside the territorial sea in which, in accordance with international law and domestic legislation, the Spanish State may exercise jurisdiction or sovereign rights with respect to the seabed, its subsoil and superjacent waters and their natural resources;
(c) the terms "Contracting State", "one of the Contracting States" and "other Contracting State" mean Australia or Spain, as the context requires;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) the terms "enterprise of one of the Contracting States" and "enterprise of the other Contracting State" means an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Spain, as the context requires;
(g) the term "tax" means Australian tax or Spanish tax, as the context requires;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "Spanish tax" means tax imposed by Spain, being tax to which this Agreement applies by virtue of Article 2;
(j) the term "competent authority" means:
(i) in the case of Australia, the Commissioner of Taxation or an authorised representative of the Commissioner; and
(ii) in the case of Spain, the Minister of Economy and Finance or an authorised representative of the Minister.
(2)
In this Agreement, the terms "Australian tax" and "Spanish tax" do not include any penalty or interest imposed under the law of either Contracting State relating to the taxes to which this Agreement applies by virtue of Article 2.
(3)
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State in force relating to the taxes to which this Agreement applies, at the time of the application.
ARTICLE 4 Residence
(1)
For the purposes of this Agreement, a person is a resident of one of the Contracting States:
(a) in the case of Australia, if the person is a resident of Australia for the purposes of Australian tax; and
(b) in the case of Spain, if the person is a resident of Spain for the purposes of the law of Spain relating to Spanish taxes.
(2)
A person is not a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
(3)
Where by reason of the preceding provisions of this Article an individual is a resident of both Contracting States, then the status of the person shall be determined in accordance with the following rules:
(a) the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person;
(b) if a permanent home is available to the person in both Contracting States, or if in neither of them, the person shall be deemed to be a resident solely of the Contracting State with which the person's economic and personal relations are the closer.For the purposes of the preceding subparagraphs, an individual's citizenship or nationality of one of the Contracting States shall be a factor in determining the degree of the individual's personal and economic relations with that Contracting State.
(4)
Where by reason of the provisions of paragraph (1) a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent Establishment
(1)
For the purposes of this Agreement, the term "permanent establishment", in relation to an enterprise, means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
(2)
The term "permanent establishment" shall include especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property;
(h) a building site or construction, installation or assembly project which exists for more than twelve months.
(3)
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
(4)
An enterprise shall be deemed to have a permanent establishment in one of the Contracting States and to carry on business through that permanent establishment if:
(a) it carries on supervisory activities in that State for more than twelve months in connection with a building site, or a construction, installation or assembly project which is being undertaken in that State; or
(b) a structure, installation, drilling rig, ship or other like substantial equipment is used:
(i) for the exploration for, or exploitation of, natural resources; orin either case if used continuously or those activities continue for a period of more than twelve months.
(ii) in activities connected with that exploration or exploitation,
(5)
A person acting in one of the Contracting States on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph (6) applies - shall be deemed to be a permanent establishment of that enterprise in the firstmentioned State if:
(a) the person has, and habitually exercises in that State, an authority to conclude contracts binding the enterprise, unless the activities of that person are limited to those mentioned in paragraph (3) and are such that, if exercised through a fixed place of business, would not make that fixed place of business a permanent establishment under the provisions of that paragraph; or
(b) in so acting, the person manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise, provided that this provision shall apply only in relation to the goods or merchandise so manufactured or processed.
(6)
An enterprise of one of the Contracting States shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, and is acting in the ordinary course of the person's business as such a broker or agent.
(7)
The fact that a company which is a resident of one of the Contracting States controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
(8)
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph (5) of Article 11 and paragraph (5) of Article 12 of this Agreement whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in one of the Contracting States.
ARTICLE 6 Income from Real Property
(1)
Income from real property may be taxed in the Contracting State in which the real property is situated.
(2)
In 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 exploitation of or the right to explore for or exploit, or in respect of the proceeds from the exploitation of, mineral deposits, oil or gas wells, quarries or other places of extraction or exploitation of natural resources; and
(b) in the case of Spain, means immovable property according to the laws of Spain, and shall also include:
(i) property accessory to immovable property;
(ii) rights to which the provisions of the general law respecting landed property apply;
(iii) usufruct of immovable property; and
(iv) a right to receive variable or fixed payments as consideration for the exploitation of or the right to explore for or exploit, or in respect of the proceeds from the exploitation of, mineral deposits, oil or gas wells, quarries or other places of extraction or exploitation of natural resources.
(3)
A lease of land, any other interest in or over land and any right referred to in any of the subparagraphs of paragraph (2) shall be regarded as situated where the land, mineral deposits, oil or gas wells, quarries or natural resources, as the case may be, are situated, or where the exploration may take place.
(4)
The provisions of paragraph (1) shall apply to income derived from the direct use, letting or use in any other form of real property.
(5)
The provisions of paragraphs (1), (3) and (4) shall also apply to the income from real property of an enterprise and to income from real property used for the performance of independent personal services.
(6)
Where the ownership of shares or other rights in a company or other entity entitles the owner of such shares or rights to the enjoyment in any manner, direct use, letting or use in any other form of real property held by the company or other entity, the income from such enjoyment, direct use, letting, or use in any other form of such rights may be taxed in the Contracting State in which the real property is situated.
ARTICLE 7 Business Profits
(1)
The profits of an enterprise of one of the Contracting States shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business as aforesaid, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
(2)
Subject to the provisions of paragraph (3), where an enterprise of one of the Contracting States carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
(3)
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
(4)
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
(5)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
(6)
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
(7)
Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits from insurance with non-residents provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
(8)
Where:
(a) a resident of one of the Contracting States is beneficially entitled, whether directly or through one or more trusts, to a share of the business profits of an enterprisecarried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee has, in accordance with the principles of Article 5, a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in that other State by that resident through a permanent establishment situated therein and the resident's share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Ships and Aircraft
(1)
Profits from the operation of ships or aircraft derived by a resident of one of the Contracting States shall be taxable only in that State.
(2)
Notwithstanding the provisions of paragraph (1), profits of the kind referred to in that paragraph from operations of ships or aircraft confined solely to places in the other Contracting State may be taxed in that other State.
(3)
The provisions of paragraphs (1) and (2) shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of one of the Contracting States through participation in a pool service, in a joint transport operating organization or in an international operating agency.
(4)
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
ARTICLE 9 Associated Enterprises
(1)
Where:
(a) an enterprise of one of the Contracting States participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of one of the Contracting States and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
(2)
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the income to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
(3)
Where profits on which an enterprise of one of the Contracting States has been charged to tax in that State are also included, by virtue of paragraph (1) or (2), in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the firstmentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the firstmentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
(1)
Dividends paid by a company which is a resident of one of the Contracting States, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends.
(3)
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the law, relating to tax, of the Contracting State of which the company making the distribution is a resident.
(4)
In the case of Spain, paragraph (2) of this Article shall not apply to income which under the provisions of the Spanish taxation law relating to transparent companies (Regimen de Transparencia Fiscal) is attributable to shareholders of such companies, whether or not distributed to such shareholders. Such income may be taxed by Spain in accordance with its domestic law as long as it is not subject to the Spanish corporation tax (Impuesto Sobre Sociedades).
(5)
The provisions of paragraph (2) shall not apply if the person beneficially entitled to the dividends, being a resident of one of the Contracting States, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with such permanent establishment or fixed base. In any such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
(6)
Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such dividends are paid to a resident ofthat other State or insofar as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company's undistributed profits to a tax on the company's undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State.
ARTICLE 11 Interest
(1)
Interest arising in one of the Contracting States, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such interest may be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
(3)
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, and interest from any other form of indebtedness as well as all other income assimilated to income from money lent by the law, relating to tax, of the Contracting State in which the income arises.
(4)
The provisions of paragraph (2) shall not apply if the person beneficially entitled to the interest, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and indebtedness in respect of which the interest is paid is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State. Where, however, the person paying the interest, whether the person is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and such interest is borne by such permanent establishment or fixed base, then such interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
A person is a resident of one of the Contracting States for the purpose of paragraph (5) if the person is a resident of that State within the operation of the law of that State relating to its tax, irrespective of the manner in which paragraph (3) or paragraph (4), as the case may be, of Article 4 operates in relation to that person.
(7)
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 12 Royalties
(1)
Royalties arising in one of the Contracting States, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
(2)
Such royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
(3)
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 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);
(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.
(4)
The provisions of paragraph (2) shall not apply if the person beneficially entitled to the royalties, being a resident of one of the Contracting States, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the property or right in respect of which the royalties are paid or credited is effectively connected with such permanent establishment or fixed base. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
(5)
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State. Where, however, the person paying the royalties, whether the person is a resident of one of the Contracting States or not, has in one of the Contracting States or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
(6)
A person is a resident of one of the Contracting States for the purposes of paragraph (5) if the person is a resident of that State within the operation of the law of that State relating to its tax, irrespective of the manner in which paragraph (3) or paragraph (4), as the case may be, of Article 4 operates in relation to that person.
(7)
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of Property
(1)
Income or gains derived by a resident of one of the Contracting States from the alienation of real property referred to in Article 6 and, as provided in that Article, situated in the other Contracting State, may be taxed in that other State.
(2)
Income or gains from the alienation of property, other than real property referred to in Article 6, that forms part of the business property of a permanent establishment which an enterprise of one of the Contracting States has in the other Contracting State or pertains to a fixed base available to a resident of the firstmentioned State in that other State for the purpose of performing independent personal services, including income or gains from the alienation of such a permanent establishment (alone or with the whole enterprise) or of such a fixed base, may be taxed in that other State.
(3)
Income or gains from the alienation of ships or aircraft operated in international traffic, or of property other than real property referred to in Article 6 pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise which operated those ships or aircraft is a resident.
(4)
Income or gains derived by a resident of one of the Contracting States from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of real property in the other Contracting State of a kind referred to in Article 6, may be taxed in that other State.
(5)
Income or gains from the alienation of shares, or comparable interests in a company other than those mentioned in paragraph (4) of this Article which is a resident of one of the Contracting States may be taxed in that Contracting State if the recipient of the income or gains, during a 12 month period preceding such alienation, had a participation, directly or indirectly, of at least 10 per cent in the capital of that company.
(6)
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of property other than that to which any of the preceding paragraphs of this Article apply.
ARTICLE 14 Independent Personal Services
(1)
Income derived by an individual who is a resident of one of the Contracting States in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless a fixed base is regularly available to the individual in the other Contracting State for the purpose of performing the individual's activities. If such a fixed base is available to the individual, the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base.
(2)
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent Personal Services
(1)
Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
(2)
Notwithstanding the provisions of paragraph (1), remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment exercised in the other Contracting State shall be taxable only in the firstmentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in the year of income of that other State;
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State.
(3)
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of one of the Contracting States may be taxed in that State.
ARTICLE 16 Directors' Fees
Directors' fees and similar payments derived by a person who is a resident of one of the Contracting States in the person's capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers
(1)
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
(2)
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
(3)
Notwithstanding the provisions of paragraphs (1) and (2), income derived by a resident of one of the Contracting States as an entertainer, from activities as an entertainer exercised in the other Contracting State, shall be exempt from tax in the other Contracting State if the visit to that other State is substantially supported by public funds of the firstmentioned State or a political subdivision or local authority thereof, in connection with the performance of such activities.
ARTICLE 18 Pensions and Annuities
(1)
Subject to the provisions of paragraph (2) of Article 19, pensions and annuities paid to a resident of one of the Contracting States shall be taxable only in that State.
(2)
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
(3)
Any alimony or other maintenance payment arising in one of the Contracting States and paid to a resident of the other Contracting State shall be taxable only in the firstmentioned State.
ARTICLE 19 Government Service
(1)
Remuneration, other than a pension or annuity, paid by one of the Contracting States or a political subdivision or local authority of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen or national of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
(2)
(a) Any pension paid by, or out of funds created by, a Contracting State or a political subdivision or local authority of that Contracting State to an individual in respect of services rendered to that State or subdivision 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 citizen or national of, that State.
(3)
Notwithstanding the provisions of paragraphs (1) and (2), the provisions of Articles 15, 16 and 18 shall apply to remuneration and pensions in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or a local authority thereof.
ARTICLE 20 Students
Where a student, who is a resident of one of the Contracting States or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of the education of the student, receives payments from sources outside that other State for the purpose of maintenance or education of the student, those payments shall be exempt from tax in that other State.ARTICLE 21 Income Not Expressly Mentioned
(1)
Items of income of a resident of one of the Contracting States which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable only in that State.
(2)
However, any such income derived by a resident of one of the Contracting States from sources in the other Contracting State may also be taxed in that other State.
(3)
The provisions of paragraph (1) shall not apply to income derived by a resident of one of the Contracting States where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In such a case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
ARTICLE 22 Source of Income
Income, profits or gains derived by a resident of one of the Contracting States which, under any one or more of Articles 6 to 8, 10 to 17 and 21, may be taxed in the other Contracting State shall, for the purposes of Article 23 and of the income tax laws of the respective Contracting States, be deemed to be income from sources in that other State.ARTICLE 23 Methods of Elimination of Double Taxation
(1)
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit or other relief against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle hereof), Spanish tax paid under the law of Spain and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Spain shall be allowed as a credit or be relieved against Australian tax payable in respect of that income.
(2)
Where a company which is a resident of Spain and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 per cent of the voting power of the firstmentioned company, the credit referred to in paragraph (1) shall include the Spanish tax paid by that firstmentioned company in respect of that portion of its profits out of which the dividend is paid.
(3)
In the case of Spain, double taxation will be avoided in the following manner:
(a) where a resident of Spain derives income or gains which, in accordance with the provisions of this Agreement, may be taxed in Australia, Spain shall allow:
(i) as a deduction from the tax on the income of that resident, an amount equal to the tax on income or gains paid in Australia; andsuch deduction in either case shall not, however, exceed that part of the tax on income or gains, as computed before the deduction is given, which is attributable, as the case may be, to the income or gains which may be taxed in Australia; and
(ii) in the case of a dividend paid by a company which is a resident of Australia to a company which is a resident of Spain and which holds directly at least 25 per cent of the capital of the company paying the dividend, the deduction allowable shall include, in addition to the amount deductible under subparagraph (i) of this paragraph, that part of the tax effectively paid by the firstmentioned company on the profits out of which the dividend is paid, which relates to such dividends, provided that such amount of tax is included, for this purpose, in the taxable base of the receiving company;
(b) where in accordance with any provision of this Agreement income or gains derived by a resident of Spain is exempt from tax in Spain, Spain may nevertheless, in calculating the amount of tax on the remaining income or gains of such resident, take into account the exempted income or gains.
ARTICLE 24 Mutual Agreement Procedure
(1)
Where a person who is a resident of one of the Contracting States considers that the actions of the competent authority of one or both of the Contracting States result or will result for the person in taxation not in accordance with this Agreement, the person may, notwithstanding the remedies provided by the national laws of those States, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within three years from the first notification of the action giving rise to taxation not in accordance with this Agreement.
(2)
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the national laws of the Contracting States.
(3)
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the application of this Agreement.
(4)
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 25 Exchange of Information
(1)
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the domestic laws of the Contracting States concerning the taxes to which this Agreement applies insofar as the taxation thereunder is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
(2)
In no case shall the provisions of paragraph (1) be construed so as to impose on the competent authority of a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State;
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 26 Diplomatic and Consular Officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic or consular officials under the general rules of international law or under the provisions of special international agreements.ARTICLE 27 Entry into Force
This Agreement shall enter into force on the date on which the Contracting States exchange notes through the diplomatic channel notifying each other that the last of such things has been done as is necessary to give this Agreement the force of law in Australia and in Spain, as the case may be, and thereupon this Agreement shall have effect:
(a) inboth Contracting States, in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the Agreement enters into force;
(b) in Australia, in respect of other tax, in relation to income of any year of income beginning on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(c) in Spain, in respect of other taxes on income, in relation to taxes chargeable for the taxable year beginning on or after 1 January in the calendar year next following that in which the Agreement enters into force.ARTICLE 28 Termination
This Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of 3 years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in both Contracting States, in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(b) in Australia, in respect of other Australian tax, in relation to income of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(c) in Spain, in respect of other taxes on income, in relation to taxes chargeable for any taxable year beginning on or after 1 January in the calendar year next following that in which the notice is given.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.
DONE in duplicate at Canberra this TWENTY FOURTH day of MARCH One thousand nine hundred and ninety-two in the English and Spanish languages, both texts being equally authentic.
PROTOCOL TO THE AGREEMENT BETWEEN AUSTRALIA AND THE KINGDOM OF SPAIN FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
FOR AUSTRALIA:
JOHN DAWKINSFOR THE KINGDOM OF SPAIN:
JOSE LUIS PARDOS
If, in an agreement for the avoidance of double taxation that may subsequently be made between Australia and a third State, there is included a Non-discrimination Article, Australia shall immediately inform the Kingdom of Spain in writing through the diplomatic channel and shall enter into negotiations with the Kingdom of Spain in order to provide the same treatment for the Kingdom of Spain as may be provided for the third State.
This protocol shall form an integral part of the Agreement.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Protocol.
DONE in duplicate at Canberra this TWENTY-FOURTH day of MARCH One thousand nine hundred and ninety-two in the English and Spanish languages, both texts being equally authentic.
FOR AUSTRALIA:
JOHN DAWKINSFOR THE KINGDOM OF SPAIN:
JOSE LUIS PARDOS
Sch 39 inserted by No 139 of 1992.
(Repealed by No 45 of 2011)
History
Sch 40 repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Czech Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 40 formerly read:
SCHEDULE 40 - Czech Agreement
Section 3
AGREEMENT BETWEEN AUSTRALIA AND THE CZECH REPUBLIC FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes covered
1.
The existing taxes to which this Agreement shall apply are:
(a) in Australia:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of Australia;
(b) in the Czech Republic:
the taxes on income.
2.
This Agreement shallalso apply to any identical or substantially similar taxes which are imposed under the federal law of Australia or the law of the Czech Republic after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in the laws of their respective States relating to the taxes to which this Agreement applies within a reasonable period of time after those changes.
ARTICLE 3 General definitions
1.
In 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; andand 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 seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "Czech Republic", when used in a geographical sense means the territory over which the Czech Republic, under Czech legislation and in accordance with international law, may exercise its sovereign rights;
(c) the terms "a Contracting State" and "the other Contracting State" mean Australia or the Czech Republic, as the context requires;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of the Czech Republic, as the context requires;
(g) the term "tax" means Australian tax or Czech tax as the context requires, but does not include any penalty or interest imposed under the law of either Contracting State relating to its tax;
(h) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "Czech tax" means tax imposed by the Czech Republic, being tax to which this Agreement applies by virtue of Article 2;
(j) the term "competent authority" means:
(i) in the case of Australia, the Commissioner of Taxation or an authorised representative of the Commissioner;
(ii) in the case of the Czech Republic, the Minister of Finance or an authorised representative of the Minister.
2.
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State from time to time in force relating to the taxes to which this Agreement applies.
ARTICLE 4 Resident
1.
For the purposes of this Agreement, a person is a resident of a Contracting State if that person is a resident of that State for the purposes of its tax.
2.
A person is not a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
3.
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person, or if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State with which the person's personal and economic relations are closer.
4.
For the purposes of paragraph 3, an individual's citizenship or nationality of a Contracting State shall be a factor in determining the degree of the person's personal and economic relations with that State.
5.
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent establishment
1.
For the purposes of this Agreement, the term "permanent establishment", in relation to an enterprise, means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
2.
The term "permanent establishment" shall include especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property; and
(h) a building site or construction, installation or assembly project which exists for more than 12 months.
3.
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; or
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; or
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; or
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising, the supplying of information, or scientific research or similar activities.
4.
An enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if:
(a) it carries on supervisory activities in that State for more than 12 months in connection with a building site, or a construction, installation or assembly project, which is being undertaken in that State; or
(b) it performs services, including consultancy or managerial services, in that Contracting State through employees or other personnel engaged by the enterprise for such purpose, but only where such activities continue in that State for the same project or a connected project for a period or periods aggregating more than 6 months within any 12 month period; or
(c) heavy equipment is being used in that State by, for or under contract with the enterprise.
5.
A person acting in a Contracting State on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph 6 applies - shall be deemed to be a permanent establishment of that enterprise in the firstmentioned State if:
(a) the person has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting, the person manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
6.
An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a person who is a broker, general commission agent or any other agent of an independent status and is acting in the ordinary course of the person's business as such a broker or agent.
7.
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
8.
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of this Agreement whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of a Contracting State, has a permanent establishment in a Contracting State.
ARTICLE 6 Income from real (immovable) property
1.
Income from real property may be taxed in the Contracting State in which the real property is situated.
2.
In this Article, the term "real property", in relation to a Contracting State, has the meaning which it has under the laws of that State and includes:
(a) a lease of land and any other interest in or over land, whether improved or not, including a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine those deposits or resources; and
(b) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources.
3.
The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of real property.
4.
Any interest or rightreferred to in paragraph 2 shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
5.
The provisions of paragraphs 1, 3 and 4 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.
ARTICLE 7 Business profits
1.
The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated in that other State. If the enterprise carries on business in that manner, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
2.
Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated in that other State, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
3.
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
4.
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5.
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
6.
Where profits include items of income which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
7.
Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits from insurance with non-residents provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
8.
Where:
(a) a resident of a Contracting State is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in that other State by that resident through a permanent establishment situated in that other State and that share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Ships and aircraft
1.
Profits from the operation of ships or aircraft derived by a resident of a Contracting State shall be taxable only in that State.
2.
Notwithstanding the provisions of paragraph 1, such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
3.
The provisions of paragraphs 1 and 2 shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of a Contracting State through participation in a pool service, in a joint transport operating organisation or in an international operating agency.
4.
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
ARTICLE 9 Associated enterprises
1.
Where:
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2.
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the income to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
3.
Where profits on which an enterprise of a Contracting State has been charged to tax in that State are also included, by virtue of paragraph 1 or 2, in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the firstmentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the firstmentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
4.
The provisions of paragraph 3 shall not apply in the case of fraud.
ARTICLE 10 Dividends
1.
Dividends paid by a company which is a resident of a Contracting State for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
However, those dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the laws of that State, but the tax so charged shall not exceed:
(a) in Australia:
(i) 5 per cent of the gross amount of so much of the dividends as has been franked (with imputed company tax payments) in accordance with the laws of Australia relating to tax, where under those laws the rate of tax on franked dividends paid to a non-resident by a company which is a resident of Australia for the purposes of its tax does not exceed 5 per cent of the gross amount of the dividends;
(ii) 15 per cent of the gross amount of the dividends in all other cases; and
(b) in the Czech Republic:
(i) 5 per cent of the gross amount of the dividends if the dividends are paid to a company (other than a partnership) which holds directly at least 20 per cent of the capital of the company paying the dividends;
(ii) 15 per cent of the gross amount of the dividends in all other cases.
3.
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the law, relating to tax, of the Contracting State of which the company making the distribution is a resident for the purposes of its tax.
4.
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or 14, as the case may be, shall apply.
5.
Dividends paid by a company which is a resident of a Contracting State, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except in so far as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. This paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of the Czech Republic for the purposes of Czech tax.
ARTICLE 11 Interest
1.
Interest arising in a Contracting State, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
That interest may be taxed in the contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3.
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, interest from any other form of indebtedness and all other income assimilated to income from money lent by the law, relating to tax, of the Contracting State in which the income arises.
4.
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the interest, being a resident of a Contracting State, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the indebtedness in respect of which the interest is paid is effectively connected with that permanent establishment or fixed base. In that case, the provisions of Article 7 or 14, as the case may be, shall apply.
5.
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment or fixed base, then the interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6.
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of that relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
7.
Interest derived from the investment of official foreign exchange reserve assets by the Government of one of the Contracting States, its monetary institutions or a bank performing central banking functions in that State shall be exempt from tax in the other Contracting State.
ARTICLE 12 Royalties
1.
Royalties arising in a Contracting State, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
Those royalties may be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
3.
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; or
(b) the use of, or the right to use, any industrial, commercial or scientific equipment; or
(c) the supply of scientific, technical, industrial or commercial knowledge or information; or
(d) the supply of any assistance that is 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); or
(e) the reception of, or the right to receive, visual images, or sounds, or both, transmitted to the public by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; or
(f) the use in connection with television or radio broadcasting, or the right to use in connection with television broadcasting or radio broadcasting, visual images, or sounds, or both transmitted by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; or
(g) the use of, or the right to use:
(i) motion picture films; or
(ii) films or video tapes for use in connection with television; or
(iii) tapes for use in connection with radio broadcasting; or
(h) total or partial forbearance in respect of the use or supply of any property or right referred to in this paragraph.
4.
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the royalties, being a resident of a Contracting State, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the property or right in respect of which the royalties are paid or credited is effectively connected with that permanent establishment or fixed base. In that case, the provisions of Article 7 or 14, as the case may be, shall apply.
5.
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6.
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of property
1.
Income, profits or gains derived by a resident of a Contracting State from the alienation of real property (immovable property) situated in the other Contracting State may be taxed in that other State.
2.
Income, profits or gains from the alienation of property, other than real property that forms part of the business property of a permanent establishment which an enterprise of a Contracting state has in the other Contracting State or pertains to a fixed base available in that other State to a resident of the firstmentioned State for the purpose of performing independent personal services, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise) or of that fixed base, may be taxed in that other State.
3.
Income, profits or gains from the alienation of ships or aircraft operated in international traffic, or of property (other than real property) pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise which operated those ships or aircraft is a resident.
4.
Income, profits or gains derived by a resident of a Contracting State from the alienation of shares or comparable interests in a company, the assets of which consist wholly or principally of real property situated in the other Contracting State, may be taxed in that other State.
5.
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of property other than that to which any of the preceding paragraphs of this Article apply.
6.
In this Article, the term "real property" has the same meaning as it has in Article 6.
7.
The situation of real property shall be determined for the purposes of this Article in accordance with paragraph 4 of Article 6.
ARTICLE 14 Independent personal services
1.
Income derived by an individual who is a resident of a Contracting State in respect of professional services or other activities of an independent character shall be taxable only in that State unless such services are performed in the other Contracting State and:
(a) the individual is present in that other State for a period or periods exceeding in the aggregate 183 days within any 12 month period commencing or ending in the year of income of that other State; or
(b) a fixed base is regularly available to the individual in that other State for the purpose of performing the individual's activities, in which case so much of the income as is attributable to that fixed base may be taxed in that State.
2.
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent personal services
1.
Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by an individual who is a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
2.
Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the firstmentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in any 12 month period commencing or ending in the year of income of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State.
3.
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of a Contracting State may be taxed in that State.
ARTICLE 16 Directors' fees
Directors' fees and similar payments derived by a resident of a Contracting State as a member of the board of directors or another similar organ of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Artistes and sportspersons
1.
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians) or sportspersons from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
2.
Where income in respect of the personal activities of an entertainer or sportsperson as such accrues not to that person but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which those activities are exercised.
3.
Notwithstanding the provisions of paragraph 1, income derived from activities referred to in paragraph 1 and performed within the framework of a cultural exchange agreed between Governments of the Contracting States shall be exempt from tax in the Contracting State in which these activities are exercised.
ARTICLE 18 Pensions and annuities
1.
Pensions (including government pensions) and annuities paid to a resident of a Contracting State shall be taxable only in that State.
2.
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
3.
Any alimony or other maintenance payment arising in a Contracting State and paid to a resident of the other Contracting State shall be taxable only in the firstmentioned State.
ARTICLE 19 Government service
1.
Remuneration, other than a pension or annuity, paid by a Contracting State or a political subdivision or local authority of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen (national) of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
2.
The provisions of paragraph 1 shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by a Contracting State or a political subdivision or local authority of that State. In that case, the provisions of Article 15 or 16, as the case may be, shall apply.
ARTICLE 20 Students and trainees
Where a student or trainee, who is a resident of a Contracting State or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of the student's or trainee's education, receives payments from sources outside that other State for the purpose of the student's or trainee's maintenance, education or training, those payments shall be exempt from tax in that other State.ARTICLE 21 Other income
1.
Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that State.
2.
However, any such income derived by a resident of a Contracting State from sources in the other Contracting State may also be taxed in that other State.
3.
The provisions of paragraph 1 shall not apply to income, other than income from real property as defined in paragraph 2 of Article 6, derived by a resident of a Contracting State where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In that case, the provisions of Article 7 or 14, as the case may be, shall apply.
ARTICLE 22 Source of income
1.
Income, profits or gains derived by a resident of the Czech Republic which, under any one or more of Articles 6 to 8 and 10 to 19, may be taxed in Australia shall for the purposes of the law of Australia relating to Australian tax be deemed to be income from sources in Australia.
2.
Income, profits or gains derived by a resident of Australia which, under any one or more of Articles 6 to 8 and 10 to 19, may be taxed in the Czech Republic shall for the purposes of paragraph 1 of Article 23 and of the law of Australia relating to Australian tax be deemed to be income from sources in the Czech Republic.
ARTICLE 23 Methods of elimination of double taxation
1.
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article), Czech tax paid under the law of the Czech Republic and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in the Czech Republic shall be allowed as a credit against Australian tax payable in respect of that income.
2.
Where a company which is a resident of the Czech Republic and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 per cent of the voting power of the firstmentioned company, the credit referred to in paragraph 1 shall include the Czech tax paid by that firstmentioned company in respect of that portion of its profits out of which the dividend is paid.
3.
The Czech Republic, when imposing taxes on its residents may include in the tax base upon which those taxes are imposed the items of income which, according to the provisions of this Agreement, may also be taxed in Australia but shall allow as a deduction from the amount of tax computed on that base an amount equal to that tax paid in Australia. That deduction shall not, however, exceed that part of the Czech tax, as computed before the deduction is given, which is appropriate to the income which, in accordance with the provisions of those Articles, may be taxed in Australia.
4.
Where a resident of one of the Contracting States derives income which, in accordance with the provisions of this Agreement is taxable only in the other Contracting State, or is exempt from tax in the firstmentioned State, that income may be taken into account in calculating the amount of the tax payable on the remaining income of that resident in the firstmentioned State.
ARTICLE 24 Mutual agreement procedure
1.
Where a person who is a resident of a Contracting State considers that the actions of the competent authority of one or both of the Contracting States result or will result for the person in taxation not in accordance with this Agreement, the person may, notwithstanding the remedies provided by the national laws of those States, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within 4 years from the first notification of the action giving rise to taxation not in accordance with this Agreement.
2.
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the national laws of the Contracting States.
3.
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the interpretation or application of this Agreement.
4.
The competent authorities of the Contracting States may also communicate with each other directly for any other purpose relating to the interpretation or application of this Agreement.
ARTICLE 25 Exchange of information
1.
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the national laws of the Contracting States concerning the taxes to which this Agreement applies in so far as the taxation under those laws is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the national laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
2.
In no case shall the provisions of paragraph 1 be construed so as to impose on the competent authority of a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State; or
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; or
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 26 Members of diplomatic missions and consular posts
Nothing in this Agreement shall affect the fiscal privileges of members of diplomatic missions and consular posts under the general rules of international law or under the provisions of special international agreements.ARTICLE 27 Entry into force
Both Contracting States shall notify each other in writing of the completion of their respective statutory and constitutional procedures required for the entry into force of this Agreement. This Agreement shall enter into force on the date of the last notification, and thereupon the Agreement shall have effect:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a nonresident, in relation to income derived on or after 1 January in the calendar year next following that in which the Agreement enters into force;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(b) in the Czech Republic:
(i) in respect of tax withheld at source, in relation to income derived on or after 1 January in the calendar year next following that in which the Agreement enters into force;
(ii) in respect of other Czech tax, in relation to income derived in any taxable year beginning on or after 1 January in the calendar year next following that in which the Agreement enters into force.ARTICLE 28 Termination
This Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a nonresident, in relation to income derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in the Czech Republic:
(i) in respect of tax withheld at source, in relation to income derived on or after 1 January in the calendar year next following that in which the notice is given;
(ii) in respect of other Czech tax, in relation to income derived in any taxable year beginning on or after 1 January in the calendar year next following that in which the notice is given.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.
DONE in duplicate at Canberra this 28th day of March, One thousand nine hundred and ninety-five in the English and Czech languages, both texts being equally authentic.
FOR AUSTRALIA:
RALPH WILLISFOR THE CZECH REPUBLIC:
IVAN KOCÁRNÍK
Sch 40 inserted by No 127 of 1995.
Sch 41 renumbered to Sch 1 by No 45 of 2011, s 3 and Sch 1 item 68, effective 27 June 2011. For transitional provisions see note under s 3(1).
(Repealed by No 45 of 2011)
History
Sch 42 repealed by No 45 of 2011, s 3 and Sch 1 item 69, to remove the text of the South African Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 42 formerly read:
SCHEDULE 42 - South African Agreement
Note: see section 3
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes covered
1
The existing taxes to which this Agreement shall apply are:
(a) in the case of Australia:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of Australia;
(b) in the case of South Africa:
(i) the normal tax; and
(ii) the secondary tax on companies.
2
The Agreement shall apply also to any identical or substantially similar taxes which are imposed under the federal law of Australia or by the Government of the Republic of South Africa under its domestic law after the date of signature of the Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in the law of their respective States relating to the taxes to which the Agreement applies within a reasonable period of time after those changes.
ARTICLE 3 General 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; andand includes any area adjacent to the territoriallimits 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 seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "South Africa" means the Republic of South Africa and, when used in a geographical sense, includes its territorial sea as well as any area outside the territorial sea, including the continental shelf, which has been or may hereafter be designated, under the laws of South Africa and in accordance with international law, as an area within which South Africa may exercise sovereign rights or jurisdiction;
(c) the term "Australian tax" means tax imposed by Australia, being tax to which the Agreement applies by virtue of Article 2;
(d) the term "South African tax" means tax imposed by South Africa, being tax to which the Agreement applies by virtue of Article 2;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) 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 South Africa, the Commissioner for the South African Revenue Service or an authorised representative of the Commissioner;
(g) the terms "a Contracting State" and "other Contracting State" mean Australia or South Africa, as the context requires;
(h) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of South Africa, as the context requires;
(i) the term "international traffic" means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely from a place or between places in the other Contracting State;
(j) the term "person" includes an individual, a company and any other body of persons;
(k) the term "tax" means Australian tax or South African tax as the context requires, but does not include any penalty or interest imposed under the law of either Contracting State relating to its tax.
2
As regards the application of the Agreement at any time by a Contracting State, any term not defined in the Agreement shall, unless the context otherwise requires, have the meaning which it has at that time under the law of that State concerning the taxes to which the Agreement applies, any meaning under the applicable law of that State prevailing over a meaning given to the term under other law of that State.
ARTICLE 4 Residence
1
For the purposes of this Agreement, a person is a resident of a Contracting State:
(a) in the case of Australia, if the person is a resident of Australia for the purposes of Australian tax but does not include any person who is liable to tax in Australia in respect only of income from sources in Australia; and
(b) in the case of South Africa, any individual who is ordinarily resident in South Africa and any other person which has its place of effective management in South Africa.The term "resident" also includes a Contracting State and any political subdivision or local authority of that State.
2
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the person shall be deemed to be a resident only of the Contracting State in which a permanent home is available to the person, or if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident only of the Contracting State with which the person's personal and economic relations are closer.
3
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident only of the State in which its place of effective management is situated.
ARTICLE 5 Permanent establishment
1
For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
2
The term "permanent establishment" includes:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place relating to the exploration for or exploitation of natural resources;
(g) an agricultural, pastoral or forestry property; and
(h) a building site or construction, installation or assembly project which exists for more than 12 months.
3
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or irregular delivery of goods or merchandise belonging to the enterprise; or
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or irregular delivery; or
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; or
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
4
An enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if:
(a) it carries on supervisory activities in that State for more than 12 months in connection with a building site, or a construction, installation or assembly project, which is being undertaken in that State; or
(b) substantial equipment is being used in that State by, for or under contract with the enterprise; or
(c) a person acting in a Contracting State on behalf of an enterprise of the other Contracting State manufactures or processes in the firstmentioned State for the enterprise goods or merchandise belonging to the enterprise.
5
A person acting in a Contracting State on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph 6 applies - shall be deemed to be a permanent establishment of that enterprise in the firstmentioned State if the person has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise.
6
An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a person who is a broker, general commission agent or any other agent of an independent status and is acting in the ordinary course of the person's business as such a broker or agent.
7
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
8
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph 5 of Article 11 and paragraph 5 of Article 12 whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of a Contracting State, has a permanent establishment in a Contracting State.
ARTICLE 6 Income from real (immovable) property
1
Income from real property may be taxed in the Contracting State in which the real property is situated.
2
In this Article, the term "real property":
(a) in the case of Australia, has the meaning which it has under the law of Australia and includes:
(i) a lease of land and any other interest in or over land, whether improved or not, including a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine those deposits or resources; and
(ii) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources; and
(b) in the case of South Africa, means such property which according to the law of South Africa is immovable property, and includes:
(i) property accessory to immovable property;
(ii) rights to which the provisions of general law respecting landed property apply;
(iii) usufruct of immovable property; and
(iv) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources.
3
Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, immovable property, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
4
The provisions of paragraph 1 shall apply to income derived from the direct use, letting or use in any other form of real property.
5
The provisions of paragraphs 1, 3 and 4 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.
ARTICLE 7 Business profits
1
The profits of an enterprise of a Contracting State shall be taxableonly in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated in that other State. If the enterprise carries on business in that manner, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
2
Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated in that other State, there shall in each Contracting State be attributed to that permanent establishment the profits which it might reasonably be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
3
In determining the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
4
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
6
Where profits include items of income or gains which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
7
Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits from insurance with nonresidents provided that if the relevant law in force in either Contracting State at the date of signature of the Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
8
Where:
(a) a resident of a Contracting State is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated in that other State and that share of business profits shall be attributed to that permanent establishment.
For the purposes of this paragraph, in the case of South Africa "trust estate" means a trust.
ARTICLE 8 Ships and aircraft
1
Profits of an enterprise of a Contracting State derived from the operation of ships or aircraft shall be taxable only in that State.
2
Notwithstanding the provisions of paragraph 1, those profits may be taxed in the other Contracting State to the extent that they are profits derived directly or indirectly from ship or aircraft operations confined solely to places in that other State.
3
The profits to which the provisions of paragraphs 1 and 2 apply shall include profits from:
(a) the lease of ships or aircraft on a bareboat basis, and of containers and related equipment, which is merely incidental to the international operation of ships or aircraft by the lessor, provided that the leased ships or aircraft, or the containers and related equipment, are used in international operations by the lessee; and
(b) the operation of ships or aircraft derived through participation in a pool service or other profit sharing arrangement.
4
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise which are shipped in a Contracting State and are discharged at a place in that State shall be treated as profits from ship or aircraft operations confined solely to places in that State.
ARTICLE 9 Associated enterprises
1
Where:
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might reasonably be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might reasonably have been expected to accrue to one of the enterprises but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the profits accruing to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
3
Where profits on which an enterprise of a Contracting State has been charged to tax in that State are also included, by virtue of the provisions of paragraph 1 or 2, in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might reasonably have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might reasonably have been expected to have operated between independent enterprises dealing wholly independently with one another, then the firstmentioned State shall make an appropriate adjustment to the amount of the tax charged on those profits in the firstmentioned State if that State agrees with the primary adjustment. In determining the adjustment by the firstmentioned State, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
1
Dividends paid by a company which is a resident of a Contracting State for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2
However, those dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but:
(a) no tax shall be charged on dividends where those dividends are paid out of profits that have borne the normal rate of company tax where those dividends are paid to a company which holds directly at least 10 per cent of the capital of the company paying the dividends; and
(b) tax charged shall not exceed 15 per cent of the gross amount of the dividends in all other cases,provided that if the relevant law in either Contracting State at the date of signature of this Agreement is varied otherwise than in minor respects so as not to affect its general character, the Contracting States shall consult each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
3
For the purposes of paragraph 2, profits have borne the normal rate of company tax:
(a) in Australia, to the extent to which the dividends have been fully "franked" in accordance with its law relating to tax; and
(b) in South Africa, where they have been subject to South African tax.
4
The term "dividends" as used in this Article means income from shares, as well as other amounts which are subjected to the same taxation treatment as income from shares by the law of the State of which the company making the distribution is a resident for the purposes of its tax.
5
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
6
Where a company is a resident of a Contracting State, the other Contracting State may not impose any tax on dividends paid by the company, except insofar as:
(a) a resident of that other State is beneficially entitled to the dividends; or
(b) the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State; or
(c)
(i) that other State does not subject profits attributable to a permanent establishment to tax in excess of the rate of income tax (in the case of Australia) or normal tax (in the case of South Africa) payable on the profits of a company which is a resident of that State; and
(ii) the dividends are paid out of profits attributable to one or more permanent establishments which the company has in that other State.Where subparagraph (c) applies and subparagraphs (a) and (b) do not apply, the tax shall not exceed 5 per cent of the gross amount of the dividends. This paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of South Africa for the purposes of South African tax.
7
Notwithstanding any other provisions of the Agreement, where a company which is a resident of a Contracting State has a permanent establishment in the other Contracting State, that other State may tax the profits attributable to the permanent establishment at a rate not exceeding by more than 5 percentage points:
(a) in the case of Australia, the rate of income tax payable on the profits of a company which is a resident of Australia; and
(b) in the case of South Africa, the rate of normal tax payable on the profits of a company which is a resident of South Africa.
ARTICLE 11 Interest
1
Interest arising in a Contracting State, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2
However, that interest may also be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3
The term "interest" in this Article includes interest from government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, interest from any other form of indebtedness, as well as income which is subjected to the same taxation treatment as income from money lent by the law of the Contracting State in which the income arises.
4
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the interest, being a resident of a Contracting State, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the indebtedness in respect of which the interest is paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5
Interest shall be deemed to arise in a Contracting State when the payer is that State itself, or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment or fixed base, then the interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6
Where, by reason of a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might reasonably have been expected to have been agreed upon by the payer and the person so entitled in the absence of that relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Agreement.
ARTICLE 12 Royalties
1
Royalties arising in a Contracting State, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2
However, those royalties may also be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
3
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; or
(b) the use of, or the right to use, any industrial, commercial or scientific equipment; or
(c) the supply of scientific, technical, industrial or commercial knowledge or information; or
(d) the supply of any assistance that is 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); or
(e) the use of, or the right to use:
(i) motion picture films; or
(ii) films or video tapes for use in connection with television; or
(iii) tapes for use in connection with radio broadcasting; or
(f) the reception of, or the right to receive, visual images or sounds, or both, transmitted to the public by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; or
(g) the use in connection with television broadcasting or radio broadcasting, or the right to use in connection with television broadcasting or radio broadcasting, visual images or sounds, or both, transmitted by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; or
(h) total or partial forbearance in respect of the use or supply of any property or right referred to in this paragraph.
4
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the royalties, being a resident of a Contracting State, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the property or right in respect of which the royalties are paid or credited is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or a local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might reasonably have been expected to have been agreed upon by the payer and the person so entitled in the absence of that relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Agreement.
ARTICLE 13 Alienation of property
1
Income, profits or gains derived by a resident of a Contracting State from the alienation of real property situated in the other Contracting State may be taxed in that other State.
2
Income, profits or gains from the alienation of property, other than real property, that forms part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or pertains to a fixed base available in that other State to a resident of the firstmentioned State for the purpose of performing independent personal services, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise) or of that fixed base, may be taxed in that other State.
3
Income, profits or gains from the alienation of ships or aircraft operated in international traffic, or of property (other than real property) pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise alienating those ships, aircraft or other property is a resident.
4
Income, profits or gains derived by a resident of a Contracting State from the alienation of any shares or other interests in a company, or of an interest of any kind in a partnership or trust or other entity, where the value of the assets of such entity, whether they are held directly or indirectly (including through one or more interposed entities, such as, for example, through a chain of companies), is principally attributable to real property situated in the other Contracting State, may be taxed in that other State.
5
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of any property other than that to which any of the preceding paragraphs of this Article apply.
6
In this Article, the term "real property" has the same meaning as it has in Article 6.
7
The situation of real property shall be determined for the purposes of this Article in accordance with paragraph 3 of Article 6.
ARTICLE 14 Independent personal services
1
Income derived by an individual who is a resident of a Contracting State in respect of professional services or other activities of an independent character shall be taxable only in that State unless a fixed base is regularly available to the individual in the other Contracting State for the purpose of performing the individual's activities. If such a fixed base is available to the individual, the income may be taxed in the other State but only so much of it as is attributable to that fixed base. For the purposes of this Agreement, where an individual who is resident of a Contracting State is present in the other Contracting State for a period or periods exceeding in the aggregate 183 days in any 12 month period commencing or ending in the year of income or year of assessment of that other State, the individual shall be deemed to have a fixed base regularly available in that other State and the income that is derived from the individual's activities performed in that other State shall be attributable to that fixed base.
2
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent personal services
1
Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by an individual who is a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
2
Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the firstmentioned State if:
(a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any 12 month period commencing or ending in the year of income or year of assessment of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State.
3
Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic by an enterprise of a Contracting State may be taxed in that State.
ARTICLE 16 Directors' fees
Directors' fees and other similar payments derived by a resident of a Contracting State in that person's capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers and sportspersons
1
Notwithstanding the provisions of Articles 7, 14 and 15, income derived by a resident of a Contracting State as an entertainer, such as a theatre, motion picture, radio or television artiste, or a musician, or as a sportsperson, from that person's personal activities as such exercised in the other Contracting State may be taxed in that other State.
2
Where income in respect of personal activities exercised by an entertainer or a sportsperson in that person's capacity as such accrues not to that person but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or sportsperson are exercised.
ARTICLE 18 Pensions and annuities
1
Subject to the provisions of paragraph 2 of Article 19, pensions and annuities from sources in one Contracting State and paid to a resident of the other Contracting State shall be exempt from tax in the firstmentioned Contracting State to the extent that such pensions and annuities are included in taxable income in the other State.
2
Notwithstanding the provisions of paragraph 1, an annuity paid to an individual who is a former resident of a Contracting State which has been purchased by that individual by way of a lump sum cash consideration from an insurer in the course of that insurer's insurance business carried on in that State, may be taxed in that State.
3
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
ARTICLE 19 Government service
1
Salaries, wages and other similar remuneration, other than a pension or annuity, paid by a Contracting State or a political subdivision or local authority of that State to an individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen or national of that State; or
(b) did not become a resident of that State solely for the purpose of rendering the services.
2
(a) Any pension paid by, or out of the funds created by, a Contracting State, or a political subdivision or a local authority of that State, to an individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State.
(b) However, that pension shall be taxable only in the other Contracting State if the individual:
(i) is a resident of, and a citizen or a national of that State; and
(ii) the services in respect of which that pension is paid were rendered in that State.
3
The provisions of paragraphs 1 and 2 shall not apply to salaries, wages and other similar remuneration or to pensions in respect of services rendered in connection with any business carried on by a Contracting State or a political subdivision or local authority of that State. In that case, the provisions of Articles 15 to 18, as the case may be, shall apply.
ARTICLE 20 Students
A student who is temporarily present in a Contracting State solely for the purpose of the student's education and who is, or immediately before being so present was, a resident of the other Contracting State, shall be exempt from tax in the firstmentioned State on payments received from sources outside that firstmentioned State for the purposes of the student's maintenance or education.ARTICLE 21 Other income
1
Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that State.
2
The provisions of paragraph 1 shall not apply to income, other than income from real property as defined in paragraph 2 of Article 6, derived by a resident of a Contracting State where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
3
Notwithstanding the provisions of paragraphs 1 and 2, items of income of a resident of a Contracting State not dealt with in the foregoing Articles of the Agreement from sources in the other Contracting State may also be taxed in the other Contracting State.
ARTICLE 22 Source of income
1
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8 and 10 to 19, may be taxed in the other Contracting State shall for the purposes of the law of that other Contracting State relating to its tax be deemed to be income from sources in that other Contracting State.
2
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8 and 10 to 19, may be taxed in the other Contracting State shall for the purposes of Article 23 and of the law of the firstmentioned Contracting State relating to its tax be deemed to be income from sources in the other Contracting State.
ARTICLE 23 Methods of elimination of double taxation
1
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article), South African tax paid under the law of South Africa and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in South Africa shall be allowed as a credit against Australian tax payable in respect of that income.
2
Where a company which is a resident of South Africa and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 per cent of the voting power of the firstmentioned company, the credit referred to in paragraph 1 shall include the South African tax paid by that firstmentioned company in respect of that portion of its profits out of which the dividend is paid.
3
In the case of South Africa, Australian tax paid by a resident of South Africa in respect of income taxable in Australia in accordance with the Agreement, shall be deducted from the taxes due according to South African fiscal law. The deduction shall not, however, exceed an amount which bears to the total South African tax payable the same ratio as the income concerned bears to the total income.
ARTICLE 24 Mutual agreement procedure
1
Where a person considers that the actions of one or both of the Contracting States result or will result for the person in taxation not in accordance with this Agreement, the person may, irrespective of the remedies provided by the domestic law of those States concerning taxes to which the Agreement applies, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within 3 years from the first notification of the action resulting in taxation not in accordance with the Agreement.
2
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with the Agreement. The solution so reached shall be implemented notwithstanding any time limits in the domestic law of the Contracting States.
3
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the interpretation or application of the Agreement. They may also consult together for the elimination of double taxation in cases not provided for in the Agreement.
4
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of the Agreement.
5
For the purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of that Agreement may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph 3 of this Article 24 or, if the Contracting States fail to resolve that doubt, pursuant to any other procedure acceptable to both Contracting States.
ARTICLE 25 Exchange of information
1
The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out the provisions of this Agreement or of the domestic law of the Contracting States concerning taxes to which the Agreement applies insofar as the taxation under that law is not contrary to the Agreement. The exchange of information is not restricted by Article 1. Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic law of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which the Agreement applies. Those persons or authorities shall use the information only for those purposes. They may disclose the information in public court proceedings or in judicial decisions.
2
In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the law or the administrative practice of that or of the other Contracting State; or
(b) to supply information which is not obtainable under the law or in the normal course of the administration of that or of the other Contracting State; or
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 26 Members of diplomatic missions and consular posts
Nothing in this Agreement shall affect the fiscal privileges of members of diplomatic missions and consular posts under the general rules of international law or under the provisions of special international agreements.ARTICLE 27 Entry into force
The Government of Australia and the Government of the Republic of South Africa shall notify each other in writing through the diplomatic channel of the completion of their respective statutory and constitutional procedures required for the entry into force of this Agreement. The Agreement shall enter into force on the date of receipt of the last notification, and thereupon the Agreement shall have effect:
(a) in the case of Australia:
(i) with regard to withholding tax on income that is derived by a nonresident, in respect of income derived on or after 1 January next following the date on which the Agreement enters into force;
(ii) with regard to other Australian tax, in respect of income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following the date on which the Agreement enters into force;
(b) in the case of South Africa:
(i) with regard to taxes withheld at source, in respect of amounts paid or credited on or after 1 January next following the date on which the Agreement enters into force;
(ii) with regard to other South African tax, in respect of years of assessment beginning on or after 1 January next following the date on which the Agreement enters into force.ARTICLE 28 Termination
This Agreement shall continue in effect indefinitely, but either of the Government of Australia or the Government of the Republic of South Africa may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Government through the diplomatic channel written notice of termination and, in that event, the Agreement shall cease to be effective:
(a) in the case of Australia:
(i) with regard to withholding tax on income that is derived by a nonresident, in respect of income derived on or after 1 January next following the date on which the notice of termination is given;
(ii) with regard to other Australian tax, in respect of income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following the date on which the notice of termination is given;
(b) in the case of South Africa:
(i) with regard to taxes withheld at source, in respect of amounts paid or credited after the end of the calendar year in which the notice of termination is given;
(ii) with regard to other South African tax, in respect of years of assessment beginning after the end of the calendar year in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorised by their respective Governments, have signed this Agreement.
DONE in duplicate at Canberra, this first day of July, 1999.
PROTOCOL
FOR THE GOVERNMENT OF AUSTRALIA:
ROD KEMP
[Signatures omitted]FOR THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA:
BHADRA RANCHOD
1
If, in an agreement for the avoidance of double taxation that may subsequently be concluded between Australia and a third State, there is included a Non-discrimination Article, Australia shall immediately inform the Government of the Republic of South Africa in writing through the diplomatic channel and shall enter into negotiations with the Government of the Republic of South Africa with a view to providing comparable treatment for South Africa as may be provided for the third State.
2
If, in an agreement for the avoidance of double taxation that may subsequently be concluded between South Africa and a third State, the rate at which South Africa may impose the secondary tax on companies is limited, South Africa shall immediately inform the Government of Australia in writing through the diplomatic channel and shall enter into negotiations with the Government of Australia with a view to providing comparable treatment for Australia as may be provided for the third State.IN WITNESS WHEREOF the undersigned, duly authorised by their respective Governments, have signed this Protocol.
DONE in duplicate at Canberra, this first day of July, 1999.
FOR THE GOVERNMENT OF AUSTRALIA:
ROD KEMP
[Signatures omitted]FOR THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA:
BHADRA RANCHOD
Sch 42 inserted by No 149 of 1999.
(Repealed by No 45 of 2011)
History
Sch 42A repealed by No 45 of 2011, s 3 and Sch 1 item 69, to remove the text of the South African Protocol from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 42A formerly read:
Schedule 42A - South African Protocol
Note: See section 3.
PROTOCOL AMENDING THE AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1
Article 2 of the Agreement is omitted and the following Article is substituted:"ARTICLE 2 Taxes Covered
1.
The existing taxes to which this Agreement shall apply are:
(a) in the case of Australia:
the income tax, including the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of Australia;
(b) in the case of South Africa:
(i) the normal tax;
(ii) the secondary tax on companies; and
(iii) the withholding tax on royalties.
2.
The Agreement shall apply also to any identical or substantially similar taxes, including taxes on dividends, that are imposed under the federal law of Australia or by the Government of the Republic of South Africa under its domestic law after the date of signature of the Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any significant changes that have been made in the law of their respective States relating to the taxes to which the Agreement applies within a reasonable period of time after those changes.
3.
For the purposes of Article 23A, the taxes to which the Agreement shall apply are taxes of every kind and description imposed on behalf of the Contracting States, or their political subdivisions or local authorities.
4.
For the purposes of Articles 25 and 25A, the taxes to which the Agreement shall apply are:
(a) in the case of Australia, taxes of every kind and description imposed under the federal tax laws administered by the Commissioner of Taxation; and
(b) in the case of South Africa, taxes of every kind and description imposed under the tax laws administered by the Commissioner for the South African Revenue Service."
ARTICLE 2
Article 3 of the Agreement is amended by:
(a) inserting after subparagraph (i) of paragraph 1:
"(j) the term "national", in relation to a Contracting State, means:
(i) any individual possessing the nationality or citizenship of that Contracting State; and
(ii) any company deriving its status as such from the laws in force in that Contracting State;" and
(b) renumbering subparagraphs (j) and (k) of paragraph 1 as (k) and (l) respectively.ARTICLE 3
Article 4 of the Agreement is omitted and the following Article 4 is substituted:"ARTICLE 4 Resident
1.
For the purposes of this Agreement, the term "resident of a Contracting State" means a person who is a resident of that State for the purposes of its tax. The Government of a Contracting State or a political subdivision or local authority of that State is also a resident of that State for the purposes of the Agreement.
2.
A person is not a resident of a Contracting State for the purposes of the Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
3.
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the person's status shall be determined as follows:
(a) the individual shall be deemed to be a resident only of the State in which a permanent home is available to that individual; but if a permanent home is available in both States, or in neither of them, that individual shall be deemed to be a resident only of the State with which the individual's personal and economic relations are closer (centre of vital interests);
(b) if the State in which the centre of vital interests is situated cannot be determined, the individual shall be deemed to be a resident only of the State of which that individual is a national;
(c) if the individual is a national of both States or of neither of them, the competent authorities of the Contracting States shall endeavour to resolve the question by mutual agreement.
4.
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident only of the State in which its place of effective management is situated.
5.
Where under the Agreement any income, profits or gains are relieved from tax in a Contracting State and, under the law in force in the other Contracting State, an individual in respect of such income, profits or gains is exempt from tax by virtue of being a temporary resident of the other State within the meaning of the applicable laws of that other State, then the relief to be allowed under the Agreement in the firstmentioned State shall not apply to the extent that such income, profits or gains are exempt from tax in the other State."
ARTICLE 4
Article 5 of the Agreement is omitted and the following Article is substituted:"ARTICLE 5 Permanent Establishment
1.
For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
2.
The term "permanent establishment" includes especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place relating to the exploration for or exploitation of natural resources; and
(g) an agricultural, pastoral or forestry property.
3.
A building site or construction or installation project constitutes a permanent establishment only if it lasts more than six months.
4.
Notwithstanding the provisions of paragraphs 1, 2 and 3, where an enterprise of a Contracting State:
(a) carries on supervisory or consultancy activities in the other State for a period or periods exceeding in the aggregate 183 days in any 12 month period in connection with a building site or construction or installation project which is being undertaken in that other State; or
(b) carries on activities (including the operation of substantial equipment) in the other State in the exploration for or exploitation of natural resources situated in that other State for a period or periods exceeding in the aggregate 90 days in any 12 month period; or
(c) operates substantial equipment in the other State (including as provided in subparagraph (b)) for a period or periods exceeding 183 days in any 12 month period,such activities shall be deemed to be performed through a permanent establishment that the enterprise has in that other State, unless the activities are limited to those mentioned in paragraph 6 and are, in relation to the enterprise, of a preparatory or auxiliary character.
5.
(a) The duration of activities under paragraphs 3 and 4 will be determined by aggregating the periods during which activities are carried on in a Contracting State by associated enterprises provided that the activities of the enterprise in that State are connected with the activities carried on in that State by its associate.
(b) The period during which two or more associated enterprises are carrying on concurrent activities will be counted only once for the purpose of determining the duration of activities.
(c) Under this Article, an enterprise shall be deemed to be associated with another enterprise if:
(i) one is controlled directly or indirectly by the other; or
(ii) both are controlled directly or indirectly by the same person or persons.
6.
Notwithstanding the preceding provisions of this Article, the term "permanent establishment" shall be deemed not to include:
(a) the use of facilities solely for the purpose of storage, display or irregular delivery of goods or merchandise belonging to the enterprise;
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or irregular delivery;
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or of collecting information, for the enterprise;
(e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character;
(f) the maintenance of a fixed place of business solely for any combination of activities mentioned in subparagraphs (a) to (e) of this paragraph,provided that such activities are, in relation to the enterprise, of a preparatory or auxiliary character.
7.
Notwithstanding the provisions of paragraphs 1 and 2, where a person - other than an agent of an independent status to whom paragraph 8 applies - is acting on behalf of an enterprise and:
(a) has, and habitually exercises, in a Contracting State an authority to substantially negotiate or conclude contracts on behalf of the enterprise; or
(b) manufactures or processes in a Contracting State for the enterprise goods or merchandise belonging to the enterprise,that enterprise shall be deemed to have a permanent establishment in that State in respect of any activities which that person undertakes for that enterprise, unless the activities of such person are limited to those mentioned in paragraph 6 and are, in relation to the enterprise, of a preparatory or auxiliary character.
8.
An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a person who is a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of the person's business as such a broker or agent.
9.
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
10.
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph 7 of Article 11 and paragraph 5 of Article 12 whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of a Contracting State, has a permanent establishment in a Contracting State."
ARTICLE 5
Article 10 of the Agreement is omitted and the following Article is substituted:"ARTICLE 10 Dividends
1.
Dividends paid by a company which is a resident of a Contracting State for the purposes of its tax, being dividends beneficially owned by a resident of the other Contracting State, may be taxed in that other State.
2.
However, those dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed:
(a) 5 per cent of the gross amount of the dividends if the beneficial owner of those dividends is a company which holds directly at least 10 per cent of the voting power in the company paying the dividends;
(b) 15 per cent of the gross amount of the dividends in all other cases.
3.
The term "dividends" as used in this Article means income from shares or other rights, not being debt-claims, participating in profits, as well as other amounts which are subjected to the same taxation treatment as income from shares by the law of the State of which the company making the distribution is a resident for the purposes of its tax.
4.
The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5.
Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company - being dividends beneficially owned by a person who is not a resident of the other Contracting State - except insofar as the holding in respect of which such dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State nor subject the company's undistributed profits to a tax on the company's undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in that other State. This paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of South Africa for the purposes of South African tax.
6.
Notwithstanding any other provisions of the Agreement, where a company which is a resident of a Contracting State has a permanent establishment in the other Contracting State, that other State may tax the profits attributable to the permanent establishment at a rate not exceeding by more than 5 percentage points:
(a) in the case of Australia, the rate of income tax payable on the profits of a company which is resident of Australia; and
(b) in the case of South Africa, the rate of normal tax payable on the profits of a company which is resident of South Africa.
7.
No relief shall be available under this Article if it was the main purpose or one of the main purposes of any person concerned with assignment of thedividends, or the creation or assignment of the shares or other rights in respect of which the dividend is paid, to take advantage of this Article by means of that creation or assignment."
ARTICLE 6
Article 11 of the Agreement is omitted and the following Article is substituted:"ARTICLE 11 Interest
1.
Interest arising in a Contracting State and beneficially owned by a resident of the other Contracting State may be taxed in that other State.
2.
However, such interest may also be taxed in the Contracting State in which it arises and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3.
Notwithstanding paragraph 2, interest arising in a Contracting State and beneficially owned by a resident of the other Contracting State may not be taxed in the firstmentioned State if:
(a) the interest is derived by a Contracting State or by a political or administrative subdivision or a local authority thereof, or by any other body exercising governmental functions in a Contracting State, or by a bank performing central banking functions in a Contracting State; or
(b) the interest is derived by a financial institution which is unrelated to and dealing wholly independently with the payer. For the purposes of this Article, the term "financial institution" means a bank or other enterprise substantially deriving its profits by raising debt finance in the financial markets or by taking deposits at interest and using those funds in carrying on a business of providing finance.
4.
Notwithstanding paragraph 3, interest referred to in subparagraph (b) of that paragraph may be taxed in the State in which it arises at a rate not exceeding 10 per cent of the gross amount of the interest if the interest is paid as part of an arrangement involving back-to-back loans or other arrangement that is economically equivalent and intended to have a similar effect to back-to-back loans.
5.
The term "interest" in this Article includes interest from government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, interest from any other form of indebtedness, as well as income which is subjected to the same taxation treatment as income from money lent by the law of the Contracting State in which the income arises.
6.
The provisions of paragraphs 1 and 2, subparagraph (b) of paragraph 3 and paragraph 4 of this Article shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State in which the interest arises through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the indebtedness in respect of which the interest is paid is effectively connected with that permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
7.
Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment or fixed base, then the interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
8.
Where, by reason of a special relationship between the payer and the beneficial owner of the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might reasonably have been expected to have been agreed upon by the payer and the person so entitled in the absence of that relationship, the provisions of this Article shall apply only to the lastmentioned amount. In such case, the excess part of the amount of interest paid shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Agreement.
9.
No relief shall be available under this Article if it was the main purpose or one of the main purposes of any person concerned with assignment of the interest, or the creation or assignment of the indebtedness in respect of which the interest is paid, to take advantage of this Article by means of that creation or assignment."
ARTICLE 7
Article 12 of the Agreement is omitted and the following Article is substituted:"ARTICLE 12 Royalties
1.
Royalties arising in a Contracting State and beneficially owned by a resident of the other Contracting State may be taxed in that other State.
2.
However, those royalties may also be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 5 per cent of the gross amount of the royalties.
3.
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 supply of scientific, technical, industrial or commercial knowledge or information;
(c) the supply of any assistance that is 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) or any such knowledge or information as is mentioned in subparagraph (b);
(d) the use of, or the right to use:
(i) motion picture films;
(ii) films or audio or video tapes or disks, or any other means of image or sound reproduction or transmission for use in connection with television, radio or other broadcasting;
(e) the use of, or the right to use, some or all of the part of the radiofrequency spectrum as specified in a spectrum licence of a Contracting State, where the payment or credit arises in that State; or
(f) total or partial forbearance in respect of the use or supply of any property or right referred to in this paragraph.
4.
The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State in which the royalties arise through a permanent establishment situated in the other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the right or property in respect of which the royalties are paid or credited is effectively connected with that permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5.
Royalties shall be deemed to arise in a Contracting State when the payer is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6.
Where, owing to a special relationship between the payer and the beneficial owner of the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might reasonably have been expected to have been agreed upon by the payer and the person so entitled in the absence of that relationship, the provisions of this Article shall apply only to the lastmentioned amount. In such case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Agreement.
7.
No relief shall be available under this Article if it was the main purpose or one of the main purposes of any person concerned with assignment of the royalties, or the creation or assignment of the rights in respect of which the royalties are paid or credited, to take advantage of this Article by means of that creation or assignment."
ARTICLE 8
Article 13 of the Agreement is omitted and the following Article is substituted:"ARTICLE 13 Alienation of Property
1.
Income, profits or gains derived by a resident of a Contracting State from the alienation of real property referred to in Article 6 and situated in the other Contracting State may be taxed in that other State.
2.
Income, profits or gains from the alienation of property, other than real property, that forms part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or pertains to a fixed base available in that other State to a resident of the firstmentioned State for the purposes of performing independent personal services, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise) or of that fixed base, may be taxed in that other State.
3.
Income, profits or gains of an enterprise of a Contracting State from the alienation of ships or aircraft operated by that enterprise in international traffic, or of property (other than real property) pertaining to the operation of such ships or aircraft, shall be taxable only in that State.
4.
Income, profits or gains derived by a resident of a Contracting State from the alienation of any shares or comparable interests deriving more than 50 per cent of their value directly or indirectly from real property situated in the other Contracting State may be taxed in that other State.
5.
Gains of a capital nature from the alienation of any property, other than that referred to in the preceding paragraphs shall be taxable only in the Contracting State of which the alienator is a resident."
ARTICLE 9
The following Article is inserted after Article 23 of the Agreement:"ARTICLE 23A Non-discrimination
1.
Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, in particular with respect to residence, are or may be subjected. This provision shall, notwithstanding the provisions of Article 1, also apply to persons who are not residents of one or both of the Contracting States.
2.
The taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities in similar circumstances. This provision shall not be construed as obliging a Contracting State to grant to individuals who are residents of the other Contracting State any of the personal allowances, reliefs and reductions for tax purposes which are granted to its own residents.
3.
Except where the provisions of paragraph 1 of Article 9, paragraph 8 of Article 11 or paragraph 6 of Article 12, apply, interest, royalties and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State shall, for the purpose of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the firstmentioned State.
4.
Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the firstmentioned State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of the firstmentioned State in similar circumstances are or may be subjected.
5.
This Article shall not apply to any provision of the laws of a Contracting State which:
(a) is designed to prevent the avoidance or evasion of taxes;
(b) does not permit the deferral of tax arising on the transfer of an asset where the subsequent transfer of the asset by the transferee would be beyond the taxing jurisdiction of the Contracting State under its laws;
(c) provides for consolidation of group entities for treatment as a single entity for tax purposes provided that a company, being a resident of that State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, may access such consolidation treatment on the same terms and conditions as other companies that are residents of the firstmentioned State;
(d) does not allow tax rebates or credits in relation to dividends paid by a company that is a resident of that State for purposes of its tax;
(e) provides deductions to eligible taxpayers for expenditure on research and development; or
(f) is otherwise agreed to be unaffected by this Article in an Exchange of Notes between the Contracting States.
6.
In this Article, provisions of the laws of a Contracting State which are designed to prevent avoidance or evasion of taxes include:
(a) measures designed to address thin capitalisation, dividend stripping and transfer pricing;
(b) controlled foreign company, transferor trusts and foreign investment fund rules; and
(c) measures designed to ensure that taxes can be effectively collected and recovered, including conservancy measures."
ARTICLE 10
Article 25 of the Agreement is omitted and the following Article is substituted:"ARTICLE 25 Exchange of Information
1.
The competent authorities of the Contracting States shall exchange such information as is foreseeably relevant for carrying out the provisions of this Agreement or to the administration or enforcement of the domestic law concerning taxes referred to in Article 2, insofar as the taxation thereunder is not contrary to the Agreement. The exchange of information is not restricted by Article 1.
2.
Any information received under paragraph 1 by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic law of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to, the taxes referred to in paragraph 4 of Article 2, or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
3.
In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the law and administrative practice of that or of the other Contracting State;
(b) to supply information which is not obtainable by the competent authority under the law or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy.
4.
If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other State may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting State to decline to supply information solely because it has no domestic interest in such information.
5.
In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person."
ARTICLE 11
The following Article is inserted after Article 25 of the Agreement:"ARTICLE 25A Assistance in the Collection of Taxes
1.
The Contracting States shall lend assistance to each other in the collection of revenue claims. This assistance is not restricted by Article 1. The competent authorities of the Contracting States may by mutual agreement settle the mode of application of this Article.
2.
The term "revenue claim" as used in this Article means an amount owed in respect of taxes referred to in Article 2, insofar as the taxation thereunder is not contrary to this Agreement or any other instrument to which the Contracting States are parties, as well as interest, administrative penalties and costs of collection or conservancy related to such amount.
3.
When a revenue claim of a Contracting State is enforceable under the laws of that State and is owed by a person who, at that time, cannot, under the laws of that State, prevent its collection, that revenue claim shall, at the request of the competent authority of that State, be accepted for purposes of collection by the competent authority of the other Contracting State. That revenue claim shall be collected by that other State in accordance with the provisions of its laws applicable to the enforcement and collection of its own taxes as if the revenue claim were a revenue claim of that other State.
4.
When a revenue claim of a Contracting State is a claim in respect of which that State may, under its law, take measures of conservancy with a view to ensure its collection, that revenue claim shall, at the request of the competent authority of that State, be accepted for purposes of taking measures of conservancy by the competent authority of the other Contracting State. That other State shall take measures of conservancy in respect of that revenue claim in accordance with the provisions of its laws as if the revenue claim were a revenue claim of that other State even if, at the time when such measures are applied, the revenue claim is not enforceable in the firstmentioned State or is owed by a person who has a right to prevent its collection.
5.
Notwithstanding the provisions of paragraphs 3 and 4, a revenue claim accepted by a Contracting State for purposes of paragraph 3 or 4 shall not, in that State, be subject to the time limits or accorded any priority applicable to a revenue claim under the laws of that State by reason of its nature as such. In addition, a revenue claim accepted by a Contracting State for the purposes of paragraph 3 or 4 shall not, in that State, have any priority applicable to that revenue claim under the laws of the other Contracting State.
6.
Proceedings with respect to the existence, validity or the amount of a revenue claim of a Contracting State shall not be brought before the courts or administrative bodies of the other Contracting State.
7.
Where, at any time after a request has been made by a Contracting State under paragraph 3 or 4 and before the other Contracting State has collected and remitted the relevant revenue claim to the firstmentioned State, the relevant revenue claim ceases to be:
(a) in the case of a request under paragraph 3, a revenue claim of the firstmentioned State that is enforceable under the laws of that State and is owed by a person who, at that time, cannot, under the laws of that State, prevent its collection; or
(b) in the case of a request under paragraph 4, a revenue claim of the firstmentioned State in respect of which that State may, under its laws, take measures of conservancy with a view to ensure its collection,the competent authority of the firstmentioned State shall promptly notify the competent authority of the other State of that fact and, at the option of the other State, the firstmentioned State shall either suspend or withdraw its request.
8.
In no case shall the provisions of this Article be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws and administrative practice of that or of the other Contracting State;
(b) to carry out measures which would be contrary to public policy;
(c) to provide assistance if the other Contracting State has not pursued all reasonable measures of collection or conservancy, as the case may be, available under its laws or administrative practice;
(d) to provide assistance in those cases where the administrative burden for that State is clearly disproportionate to the benefit to be derived by the other Contracting State;
(e) to provide assistance if that State considers that the taxes with respect to which assistance is requested are imposed contrary to generally accepted taxation principles."
ARTICLE 12
Paragraph 1 of the existing Protocol to the Agreement is deleted.ARTICLE 13
1.
The Government of Australia and the Government of the Republic of South Africa shall notify each other in writing through the diplomatic channel of the completion of their domestic requirements for the entry into force of this Protocol.
2.
The Protocol, which shall form an integral part of the Agreement, shall enter into force on the date of the last notification, and thereupon the Protocol shall have effect:
(a) in the case of Australia:
(i) with regard to withholding tax on income that is derived by a nonresident, in respect of income derived on or after the first day of the second month following the date on which the Protocol enters into force;
(ii) with regard to other Australiantax, in respect of income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following the date on which the Protocol enters into force;
(b) in the case of South Africa:
(i) with regard to taxes withheld at source, in respect of amounts paid or credited from the day after the date on which the Protocol enters into force;
(ii) with regard to other South African tax, in respect of years of assessment beginning on or after 1 January next following the date on which the Protocol enters into force;
(c) for purposes of Article 25 from the date on which the Protocol enters into force; and
(d) for purposes of Article 25A, from a date to be agreed in an Exchange of Notes through the diplomatic channel.
IN WITNESS WHEREOF the undersigned, duly authorised by their respective Governments, have signed this Protocol.
DONE in duplicate at Pretoria, this 31st day of March two thousand and eight.
FOR THE GOVERNMENT OF AUSTRALIA FOR THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA HE Philip Green
High CommissionerHE Geraldine Fraser-Moleketi
Acting Minister of Finance[Signatures omitted]
Sch 42A inserted by No 111 of 2008, s 3 and Sch 1 item 4, effective 31 October 2008. The Protocol entered into force on 12 November 2008.
(Repealed by No 45 of 2011)
History
Sch 43 repealed by No 45 of 2011, s 3 and Sch 1 item 69, to remove the text of the Slovak Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 43 formerly read:
SCHEDULE 43 - Slovak Agreement
Note: See section 3
AGREEMENT BETWEEN AUSTRALIA AND THE SLOVAK REPUBLIC FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes covered
1.
The existing taxes to which this Agreement shall apply are:
(a) in the Slovak Republic:
(i) the tax on income of individuals; and
(ii) the tax on income of legal persons; and
(b) in Australia:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of Australia.
2.
This Agreement shall also apply to any identical or substantially similar taxes which are imposed under the federal law of Australia or the law of the Slovak Republic after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in the laws of their respective States relating to the taxes to which this Agreement applies within a reasonable period of time after those changes.
ARTICLE 3 General definitions
1.
In this Agreement, unless the context otherwise requires:
(a) the term "Slovak Republic", when used in a geographical sense, means the territory over which the Slovak Republic exercises its sovereignty, sovereign rights or jurisdiction in accordance with the rules ofinternational law;
(b) 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; andand 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 seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(c) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(d) the term "company" means any body corporate or any entity which is treated as a company or a body corporate for tax purposes;
(e) the term "competent authority" means:
(i) in the case of the Slovak Republic, the Minister of Finance of the Slovak Republic or an authorized representative of the Minister; and
(ii) in the case of Australia, the Commissioner of Taxation or an authorized representative of the Commissioner;
(f) the terms "a Contracting State" and "other Contracting State" mean the Slovak Republic or Australia, as the context requires;
(g) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of the Slovak Republic or an enterprise carried on by a resident of Australia, as the context requires;
(h) the term "person" includes an individual, a company and any other body of persons;
(i) the term "Slovak tax" means tax imposed by the Slovak Republic, being tax to which this Agreement applies by virtue of Article 2;
(j) the term "tax" means Australian tax or Slovak tax, as the context requires, but does not include any penalty or interest imposed under the law of either Contracting State relating to its tax.
2.
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State from time to time in force relating to the taxes to which this Agreement applies.
ARTICLE 4 Resident
1.
For the purposes of this Agreement, a person is a resident of a Contracting State if that person is a resident of that State for the purposes of its tax.
2.
A person is not a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
3.
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the status of the person shall be determined in accordance with the following rules:
(a) the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person;
(b) if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State in which the person has an habitual abode;
(c) if the person has an habitual abode in both Contracting States, or does not have an habitual abode in either of them, the person shall be deemed to be a resident solely of the Contracting State with which the person's economic and personal relations are the closer.
4.
For the purposes of paragraph 3, an individual's citizenship or nationality of a Contracting State shall be a factor in determining the degree of the person's economic and personal relations with that State.
5.
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent establishment
1.
For the purposes of this Agreement, the term "permanent establishment", in relation to an enterprise, means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
2.
The term "permanent establishment" includes especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) an agricultural, pastoral or forestry property;
(h) a building site or construction, installation or assembly project which exists for more than 12 months; and
(i) the furnishing of services, including consultancy services, by an enterprise of a Contracting State through an employee or other personnel in the other Contracting State, provided that such activities continue in that other State for the same project or a connected project for a period or periods aggregating more than six months within any 12 month period.
3.
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; or
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; or
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; or
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, for example advertising or scientific research.
4.
An enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if:
(a) it carries on supervisory activities in that State for more than 12 months in connection with a building site, or a construction, installation or assembly project, which is being undertaken in that State; or
(b) substantial equipment including, for example, but not limited to, a structure, installation, drilling rig, or machinery is being used in that State by, for or under contract with, the enterprise.
5.
A person acting in a Contracting State on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph 6 applies - shall be deemed to be a permanent establishment of that enterprise in the firstmentioned State if:
(a) the person has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting, the person manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
6.
An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a person who is a broker, general commission agent or any other agent of an independent status and is acting in the ordinary course of the person's business as such a broker or agent.
7.
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
8.
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of this Agreement whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of a Contracting State, has a permanent establishment in a Contracting State.
ARTICLE 6 Income from real (immovable) property
1.
Income from real property may be taxed in the Contracting State in which the real property is situated.
2.
In this Article, the term "real property", in relation to a Contracting State, has the meaning which it has under the laws of that State and includes:
(a) a lease of land and any other entitlement in or over land, whether improved or not, including a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine those deposits or resources; and
(b) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources.
3.
Any entitlement or right referred to in paragraph 2 shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
4.
The provisions of paragraphs 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.
ARTICLE 7 Business profits
1.
The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated in that other State. If the enterprise carries on business in that manner, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
2.
Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated in that other State, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
3.
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
4.
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5.
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
6.
Where profits include items of income or gains which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
7.
Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits from insurance with nonresidents provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
8.
Where:
(a) a resident of a Contracting State is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in that other State by that resident through a permanent establishment situated in that other State and that share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Ships and aircraft
1.
Profits from the operation of ships or aircraft derived by a resident of a Contracting State shall be taxable only in that State.
2.
Notwithstanding the provisions of paragraph 1, such profits may be taxed in the other Contracting State where they are profits from operations of ships or aircraft confined solely to places in that other State.
3.
The provisions of paragraphs 1 and 2 shall apply in relation to the share of the profits from the operation of ships or aircraft derived by a resident of a Contracting State through participation in a pool service, in a joint transport operating organisation or in an international operating agency.
4.
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at another place in that State shall be treated as profits from operations of ships or aircraft confined solely to places in that State.
ARTICLE 9 Associated enterprises
1.
Where:
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2.
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the income to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
3.
Where profits on which an enterprise of a Contracting State has been charged to tax in that State are also included, by virtue of the provisions of paragraph 1 or 2, in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the firstmentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the firstmentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
1.
Dividends paid by a company which is a resident of a Contracting State for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
Those dividends may be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends.
3.
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the law, relating to tax, of the Contracting State of which the company making the distribution is a resident for the purposes of its tax.
4.
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In either case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5.
Dividends paid by a company which is a resident of a Contracting State, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except in so far as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State. This paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of the Slovak Republic for the purposes of Slovak tax.
ARTICLE 11 Interest
1.
Interest arising in a Contracting State, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
That interest may also be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3.
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, interest from any other form of indebtedness and all other income assimilated to income from money lent by the law, relating to tax, of the Contracting State in which the income arises.
4.
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the interest, being a resident of a Contracting State, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the indebtedness in respect of which the interest is paid is effectively connected with that permanent establishment or fixed base. In either case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
5.
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or a fixed base in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment or fixed base, then the interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6.
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of that relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 12 Royalties
1.
Royalties arising in a Contracting State, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2.
Those royalties may be taxed in the Contracting State in which they arise, and according to the law of thatState, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
3.
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, trade-mark or other like property or right; or
(b) the use of, or the right to use, any industrial, commercial or scientific equipment; or
(c) the supply of scientific, technical, industrial or commercial knowledge or information; or
(d) the supply of any assistance that is 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); or
(e) the use of, or the right to use any:
(i) motion picture film; or
(ii) film or video tape for use in connection with television; or
(iii) tape for use in connection with radio broadcasting; or
(f) the reception of, or the right to receive, visual images or sounds, or both, transmitted to the public by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; or
(g) the use in connection with television broadcasting or radio broadcasting, or the right to use in connection with television broadcasting or radio broadcasting, visual images or sounds, or both, transmitted by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; or
(h) a total or partial forbearance in respect of the use or supply of any property or right referred to in subparagraphs (a), (b), (e), (f) and (g) of this paragraph.
4.
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the royalties, being a resident of a Contracting State, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the property or right in respect of which the royalties are paid or credited is effectively connected with that permanent establishment or fixed base. In either case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
5.
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6.
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13 Alienation of property
1.
Income, profits or gains derived by a resident of a Contracting State from the alienation of real property (immovable property) situated in the other Contracting State may be taxed in that other State.
2.
Income, profits or gains from the alienation of property, other than real property, that forms part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or pertains to a fixed base available in that other State to a resident of the firstmentioned State for the purpose of performing independent personal services, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise) or of that fixed base, may be taxed in that other State.
3.
Income, profits or gains from the alienation of ships or aircraft operated in international traffic, or of property (other than real property) pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State of which the enterprise which operated those ships or aircraft is a resident.
4.
Income, profits or gains derived by a resident of a Contracting State from the alienation of any shares or other interests in a company, or of an interest of any kind in a partnership, trust or other entity, where the value of the assets of such entity is principally attributable to real property situated in the other Contracting State, may be taxed in that other State. The value ofthe assets of such entity can be held directly or indirectly, through one or more interposed entities, such as, for example, through a chain of companies.
5.
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of any property other than that to which any of the preceding paragraphs of this Article apply.
6.
In this Article, the term "real property" has the same meaning as it has in Article 6.
7.
The situation of real property shall be determined for the purposes of this Article in accordance with the provisions of paragraph 3 of Article 6.
ARTICLE 14 Independent personal services
1.
Income derived by an individual who is a resident of a Contracting State in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless a fixed base is regularly available to the individual in the other Contracting State for the purpose of performing the individual's activities. If such a fixed base is available to the individual, the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base.
2.
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent personal services
1.
Subject to the provisions of Articles 16, 18, and 19, salaries, wages and other similar remuneration derived by an individual who is a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
2.
Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the firstmentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in any 12 month period commencing or ending in the year of income concerned; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State; and
(d) the remuneration is, or upon the application of this Article will be, subject to tax in the firstmentioned State.
3.
Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic by a resident of a Contracting State may be taxed in that State.
ARTICLE 16 Directors' fees
Directors' fees and similar payments derived by a resident of a Contracting State as a member of the board of directors or another similar organ of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers and sportspersons
1.
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes, and musicians) or sportspersons from their personal activities as such may be taxed in the Contracting State in which those activities are exercised.
2.
Where income in respect of the personal activities of an entertainer or sportsperson as such accrues not to that person but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which those activities are exercised.
ARTICLE 18 Pensions and annuities
1.
Pensions (including government pensions) and annuities paid to a resident of a Contracting State shall be taxable only in that State.
2.
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
3.
Any alimony or other maintenance payment arising in a Contracting State and paid to a resident of the other Contracting State shall be taxable only in the firstmentioned State.
ARTICLE 19 Government service
1.
Remuneration, other than a pension or annuity, paid by a Contracting State or a political subdivision or local authority of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, that remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen (national) of that State; or
(b) did not become a resident of that State solely for the purpose of rendering the services.
2.
The provisions of paragraph 1 shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by a Contracting State or a political subdivision or local authority of that State. In that case, the provisions of Article 15 or Article 16, as the case may be, shall apply.
ARTICLE 20 Students and trainees
Where a student or trainee, who is a resident of a Contracting State or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of the student's or trainee's education or training, receives payments from sources outside that other State for the purpose of the student's or trainee's maintenance, education or training, those payments shall be exempt from tax in that other State.ARTICLE 21 Income not expressly mentioned
1.
Items of income of a resident of a Contracting State which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable only in that State.
2.
However, any such income derived by a resident of a Contracting State from sources in the other Contracting State may also be taxed in that other State.
3.
The provisions of paragraph 1 shall not apply to income, other than income from "real property" as defined in paragraph 2 of Article 6, if the recipient of such income, being a resident of a Contracting State, carries on business in the other Contracting State through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the right or property in respect of which the income is paid is effectively connected with that permanent establishment or fixed base. In either case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
ARTICLE 22 Source of income
1.
Income, profits or gains derived by a resident of the Slovak Republic which, under the provisions of any one or more of Articles 6 to 8 and 10 to 19, may be taxed in Australia shall for the purposes of the law of Australia relating to Australian tax be deemed to be income from sources in Australia.
2.
Income, profits or gains derived by a resident of Australia which, under the provisions of any one or more of Articles 6 to 8 and 10 to 19, may be taxed in the Slovak Republic shall for the purposes of paragraph 1 of Article 23 and of the law of Australia relating to Australian tax be deemed to be income from sources in the Slovak Republic.
ARTICLE 23 Methods of elimination of double taxation
1.
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principles of this Article), Slovak tax paid under the law of the Slovak Republic and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in the Slovak Republic shall be allowed as a credit against Australian tax payable in respect of that income.
2.
Where a company which is a resident of the Slovak Republic and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 per cent of the voting power of the firstmentioned company, the credit referred to in paragraph 1 shall include the Slovak tax paid by that firstmentioned company in respect of that portion of its profits out of which the dividend is paid.
3.
In the Slovak Republic, double taxation will be avoided in the following manner: the Slovak Republic, when imposing taxes on its residents, may include in the tax base upon which such taxes are imposed the items of income which according to the provisions of this Agreement may also be taxed in Australia, but shall allow as a deduction from the amount of tax computed on such a base an amount equal to the tax paid in Australia. Such deduction shall not, however, exceed that part of the Slovak tax, as computed before the deduction is given, which is appropriate to the income which, in accordance with the provisions of this Agreement, may also be taxed in Australia.
ARTICLE 24 Mutual agreement procedure
1.
Where a person who is a resident of a Contracting State considers that the actions of the competent authority of a Contracting State result or will result for the person in taxation not in accordance with the provisions of this Agreement, the person may, notwithstanding the remedies provided by the national laws of the Contracting States, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within four years from the first notification of the action giving rise to taxation not in accordance with the provisions of this Agreement.
2.
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with the provisions of this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the national laws of the Contracting States.
3.
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the application of this Agreement.
4.
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 25 Exchange of information
1.
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the national laws of the Contracting States concerning the taxes to which this Agreement applies in so far as the taxation under those laws is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the national laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes.
2.
In no case shall the provisions of paragraph 1 be construed so as to impose on the competent authority of a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State; or
(b) to supply particulars which are not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; or
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 26 Diplomatic and consular officials
Nothing in this Agreement shall affect the fiscal privileges of diplomatic and consular officials under the general rules of international law or under the provisions of special international agreements.ARTICLE 27 Entry into force
1.
Both Contracting States shall notify each other in writing of the completion of their respective statutory and constitutional procedures required for the entry into force of this Agreement.
2.
This Agreement shall enter into force on the date of the last notification referred to in paragraph 1, and the provisions of this Agreement shall apply:
(a) in the Slovak Republic:
(i) in respect of tax withheld at source, in relation to amounts derived on or after 1 January in the calendar year next following that in which the Agreement enters into force;
(ii) in respect of other Slovak tax, in relation to tax chargeable for any taxable year beginning on or after 1 January in the calendar year next following that in which the Agreement enters into force;
(b) in Australia:
(i) in respect of withholding tax on income that is derived by a nonresident, in relation to income derived on or after 1 January in the calendar year next following that in which the Agreement enters into force;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the Agreement enters into force.
ARTICLE 28 Termination
This Agreement shall remain in force until terminated by a Contracting State. Either Contracting State may, on or before 30 June in any calendar year beginning after the expiration of five years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in the Slovak Republic:
(i) in respect of tax withheld at source, in relation to amounts derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Slovak tax, in relation to tax chargeable for any taxable year beginning on or after 1 January in the calendar year next following that in which the notice of termination is given;
(b) in Australia:
(i) in respect of withholding tax on income that is derived by a nonresident, in relation to income derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, being duly authorized thereunto by their respective Governments, have signed this Agreement.
DONE in duplicate at Canberra, this twenty-fourth day of August, One thousand nine hundred and ninety-nine in the Slovak and English languages, both texts being equally authentic.
FOR AUSTRALIA:
ROD KEMP [Signatures omitted]FOR THE SLOVAK REPUBLIC:
DR EDUARD KUKAN
[ CCH Note: The Australia-Slovak Republic double taxation agreement entered into force on 22 December 1999 (Ref: Commonwealth Gazette No GN7 of 23 February 2000).]
Sch 43 inserted by No 149 of 1999.
(Repealed by No 45 of 2011)
History
Sch 44 repealed by No 45 of 2011, s 3 and Sch 1 item 69, to remove the text of the Argentine Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 44 formerly read:
SCHEDULE 44 - Argentine Agreement
Note: See section 3
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE ARGENTINE REPUBLIC FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes covered
1
The existing taxes to which this Agreement shall apply are:
(a) in Australia:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of Australia;
(b) in Argentina:
the income tax (impuesto a las ganancias).
2
This Agreement shall also apply to any identical or substantially similar taxes which are imposed under the law of the Argentine Republic or the federal law of Australia after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in the laws of their respective States relating to the taxes to which this Agreement applies within a reasonable period of time after those changes.
ARTICLE 3 General definitions
1
In this Agreement, unless the context otherwise requires and in accordance with international law:
(a) the term "Argentina", when used in a geographical sense, includes:
(i) the maritime areas adjacent to the outer limit of the territorial sea, to the extent to which the Argentine Republic possesses sovereignty rights and jurisdiction, and
(ii) the continental shelf and exclusive economic zone of the Argentine Republic only in relation to exploration and exploitation of natural resources, and to tourism or recreation on off-shore installations;
(b) 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; andand includes:
(vi) the Coral Sea Islands Territory,
(i) the 12 nautical mile territorial sea, and
(ii) the contiguous zone for purposes consistent with international law, and
(iii) the continental shelf and exclusive economic zone of Australia but only in relation to exploration for and exploitation of the living and non-living natural resources, and in relation to tourism or recreation on offshore installations;
(c) the term "Argentine tax" means tax imposed by Argentina, being tax to which this Agreement applies by virtue of Article 2;
(d) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) the term "competent authority" means, in the case of Argentina, the Ministry of Economy and Works and Public Services, Secretariat of Finance (el Ministerio de Economia y Obras y Servicios Publicos, Secretaria de Hacienda) and, in the case of Australia, the Commissioner of Taxation or an authorised representative of the Commissioner;
(g) the terms "a Contracting State" and "other Contracting State" mean Argentina or Australia, as the context requires;
(h) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Argentina, as the context requires;
(i) the term "international traffic" means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely from a place or between places in the other Contracting State;
(j) the term "person" includes an individual, a company and any other body of persons;
(k) the term "tax" means Australian tax or Argentine tax, as the context requires, but does not include any penalty or interest imposed under the law of either Contracting State relating to its tax.
2
As regards the application of this Agreement by a Contracting State at any time, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has at that time under the law of that State concerning the taxes to which this Agreement applies.
ARTICLE 4 Residence
1
For the purposes of this Agreement, a person is a resident of one of the Contracting States if the person is a resident of that State under the law of that State relating to its tax.
2
A person is not a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
3
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person, or if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State with which the person's personal and economic relations are closer.
4
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent establishment
1
For the purposes of this Agreement, the term "permanent establishment", in relation to an enterprise, means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
2
The term "permanent establishment" includes:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place relating to the exploration for or the exploitation of natural resources;
(g) an agricultural, pastoral or forestry property; and
(h) a building site or construction, installation or assembly project which exists for more than 6 months.
3
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage or display of goods or merchandise belonging to the enterprise; or
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage or display; or
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; or
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or of collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character.
4
An enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if:
(a) it carries on supervisory activities in that State for more than 6 months in connection with a building site, or a construction, installation or assembly project, which is being undertaken in that State; or
(b) it performs services, including consultancy or managerial services, in that Contracting State through employees or other personnel engaged by the enterprise for such purpose, but only where such activities continue in that State for the same project or a connected project for a period or periods aggregating more than 183 days within any 12 month period; or
(c) substantial equipment is being used in that State by, for or under contract with the enterprise.
5
A person acting in a Contracting State for an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph 6 applies - shall be deemed to be a permanent establishment of that enterprise in the firstmentioned State if:
(a) the person has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting, the person manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
6
An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a person who is a broker, general commission agent or any other agent of an independent status and is acting in the ordinary course of the person's business as such a broker or agent.
7
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
ARTICLE 6 Income from real (immovable) property
1
Income from real property may be taxed in the Contracting State in which the real property is situated.
2
In this Article, the term "real property", in relation to a Contracting State, has the meaning which it has under the law of that State and includes:
(a) a lease of land and any other interest in or over land, whether improved or not, including a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine those deposits or resources; and
(b) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources.
3
Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
4
The provisions of paragraph 1 and paragraph 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.
ARTICLE 7 Business profits
1
The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated in that other State. If the enterprise carries on business in that manner, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to:
(a) that permanent establishment; or
(b) sales within that other Contracting State of goods or merchandise of a similar kind as sold, or other business activities carried on in that other State of the same or similar kind as those carried on, through that permanent establishment, if it may reasonably be concluded that those sales or business activities would not have been made or carried on but for the existence of that permanent establishment or the continued provision by it of goods or services.
2
Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated in that other State, there shall in each Contracting State be attributed to that permanent establishment the profits which it might reasonably be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
3
In determining the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
4
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
6
Where profits include items of income or gains which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
7
Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits derived by an enterprise of the other Contracting State from insurance or reinsurance provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
8
Where:
(a) a resident of a Contracting Stateis beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated in that other State and that share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Ships and aircraft
1
Profits of an enterprise of a Contracting State derived from the operation of ships or aircraft are taxable only in that State.
2
Notwithstanding the provisions of paragraph 1, such profits may be taxed in the other Contracting State to the extent that they are profits derived directly or indirectly from ship or aircraft operations confined solely to places in that other State.
3
The profits to which the provisions of paragraph 1 and paragraph 2 apply include profits from the operation of ships or aircraft derived through participation in a pool service or other profit sharing arrangement.
4
Interest earned on funds held in one of the Contracting States by a resident of the other Contracting State in connection with the operation of ships or aircraft, other than operations confined solely to places in the firstmentioned State, and any other income incidental to such operation, shall be treated as profits from the operation of ships or aircraft.
5
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise which are shipped in a Contracting State and are discharged at a place in that State shall be treated as profits from ship or aircraft operations confined solely to places in that State.
ARTICLE 9 Associated enterprises
1
Where:
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might reasonably be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might reasonably have been expected to accrue to one of the enterprises but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the profits which might reasonably be expected to accrue to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
3
Where profits on which an enterprise of a Contracting State has been charged to tax in that State are also included, by virtue of the provisions of paragraph 1 or 2, in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might reasonably have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might reasonably have been expected to have operated between independent enterprises dealing wholly independently with one another, then the firstmentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the firstmentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
1
Dividends paid by a company which is a resident of a Contracting State for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2
However, those dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed:
(a) in Australia:
(i) 10 per cent of the gross amount of the dividends to the extent to which the dividends have been "franked" in accordance with Australia's law relating to tax, if the dividends are paid to a person which holds directly at least 10 per cent of the voting power of the company paying the dividends; and
(ii) 15 per cent of the gross amount of the dividends in all other cases; and
(b) in Argentina:
(i) 10 per cent of the gross amount of the dividends if the dividends are paid to a person which holds directly at least 25 per cent of the capital of the company paying the dividends; and
(ii) 15 per cent of the gross amount of the dividends in all other cases;provided that if the relevant law in either Contracting State at the date of signature of this Agreement is varied, otherwise than in minor respects so as to not affect its general character, the Contracting States shall consult each other with a view to facilitating any amendment of this paragraph as may be appropriate.
3
The term "dividends" in this Article means income from shares, as well as other amounts which are subjected to the same taxation treatment as income from shares by the laws of the State of which the company making the distribution is a resident for the purposes of its tax.
4
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5
Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company - being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled - except insofar as the holding in respect of which such dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, even if the dividends paid consist wholly or partly of profits or income arising in such other State. This paragraph shall not apply in relation to dividends paid by a company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Argentina for the purposes of Argentine tax.
ARTICLE 11 Interest
1
Interest arising in a Contracting State, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2
However, that interest may also be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 12 per cent of the gross amount of the interest.
3
Notwithstanding the provisions of paragraph 2, interest derived from the investment in a Contracting State of official reserve assets by the government of the other Contracting State, a government monetary institution or a bank performing central banking functions in that other State shall be exempt from tax in the firstmentioned State.
4
The term "interest" in this Article includes interest from government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, interest from any other form of indebtedness and all other income assimilated to income from money lent by the law, relating to tax, of the Contracting State in which the income arises. However, the term "interest" does not include income dealt with in Article 8 or in Article 10.
5
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the interest, being a resident of a Contracting State, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the indebtedness in respect of which the interest is paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
6
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment or fixed base, then the interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
7
Where, by reason of a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might reasonably have been expected to have been agreed upon by the payer and the person so entitled in the absence of that relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Agreement.
ARTICLE 12 Royalties
1
Royalties arising in a Contracting State, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2
Those royalties may also be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed:
(a) 10 per cent of the gross amount of the royalties in the case of payments or credits referred to in:
(i) subparagraph 3(a), provided that this subparagraph 2(a) applies only in relation to copyright of literary, dramatic, musical or other artistic work;
(ii) subparagraphs 3(b)-(d); and
(iii) subparagraph 3(j) that relate to any payment or credit referred to in subparagraphs 2(a)(i) or (ii);
(b) 10 per cent of the net amount of the royalties in the case of payments or credits referred to in subparagraph 3(e). For the purposes of this subparagraph 2(b), the net amount of a royalty refers to the amount of payments or credits remaining after the deduction of the expenses directly related to the rendering of the technical assistance and the costs and expenses of any equipment or material supplied by the provider of the assistance and for the specific purpose of rendering such assistance; and
(c) 15 per cent of the gross amount of the royalties in all other cases, including all copyright other than that referred to in subparagraph 2(a)(i).
3
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 or other intangible property, trademark or other like property or right; or
(b) the use of, or the right to use, any industrial or scientific equipment; or
(c) the supply of scientific, technical, or industrial, knowledge or information; or
(d) the supply of any assistance that is 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); or
(e) the rendering of any technical assistance not included in subparagraph 3(d); or
(f) the reception of, or the right to receive, visual images or sounds, or both, transmitted to the public by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; or
(g) the use in connection with television broadcasting or radio broadcasting, or the right to use in connection with television broadcasting or radio broadcasting, visual images or sounds, or both, or other means of reproduction for use in connection with television broadcasting or radio broadcasting, transmitted by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; or
(h) the use of, or the right to use:
(i) motion picture films; or
(ii) films or video tapes for use in connection with television; or
(iii) tapes for use in connection with radio broadcasting; or
(i) the use of, or the right to use, any commercial equipment, and the supply of commercial knowledge or information; or
(j) total or partial forbearance in respect of the use or supply of any property or right referred to in this paragraph.
4
The provisions of paragraph 2 shall not apply if the person beneficially entitled to the royalties, being a resident of a Contracting State, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the property or right in respect of which the royalties are paid or credited is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision or local authority of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6
Where, by reason of a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might reasonably have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case the excess part of the amount of the royalties paid or credited shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Agreement.
ARTICLE 13 Alienation of property
1
Income, profits or gains derived by a resident of a Contracting State from the alienation of real property situated in the other Contracting State may be taxed in that other State.
2
Income, profits or gains derived by a resident of a Contracting State from the alienation of any shares or other interests in a company, or of an interest of any kind in a partnership or trust or other entity, where the value of the assets of that company, partnership, trust, or other entity, whether they are held directly or indirectly (including through one or more interposed entities, such as, for example, through a chain of companies), is principally attributable to real property situated in the other Contracting State, may be taxed in that other State.
3
Income, profits or gains from the alienation of property, other than real property, that forms part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or pertains to a fixed base available in that other State to a resident of the firstmentioned State for the purpose of performing independent personal services, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise) or of that fixed base, may be taxed in that other State.
4
Income, profits or gains from the alienation of ships or aircraft operated in international traffic, or of property (other than real property) pertaining to the operation of those ships or aircraft by an enterprise of a Contracting State, shall be taxable only in that State.
5
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of any property other than that to which any of the preceding paragraphs of this Article apply.
6
In this Article, the term "real property" has the same meaning as it has in Article 6.
7
The situation of real property shall be determined for the purposes of this Article in accordance with paragraph 3 of Article 6.
ARTICLE 14 Independent personal services
1
Income derived by an individual who is a resident of a Contracting State in respect of professional services or other activities of an independent character shall be taxable only in that State but such income may also be taxed in the other Contracting State if the individual:
(a) has a fixed base regularly available in the other Contracting State for the purpose of performing the individual's activities. If such a fixed base is available to the individual, the income may be taxed in the other State but only so much of the income as is attributable to that fixed base; or
(b) is present in the other State for a period or periods exceeding in the aggregate 183 days in any 12 month period commencing or ending in the fiscal period or year of income concerned. If the individual is so present only so much of the income as is attributable to the activities performed in the other State may be taxed in that State.
2
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent personal services
1
Subject to the provisions of Articles 16, 18, 19, 20 and 21, salaries, wages and other similar remuneration derived by an individual who is a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
2
Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the firstmentioned State if:
(a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any 12 month period commencing or ending in the fiscal period or year of income concerned, as the case may be; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State.
3
Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic by an enterprise of a Contracting State may be taxed in that State.
ARTICLE 16 Directors' fees
Directors' fees and similar payments derived by a resident of a Contracting State in that person's capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers
1
Notwithstanding the provisions of Articles 14 and 15, income derived by an entertainer who is a resident of a Contracting State (such as theatrical, motion picture, radio or television artistes and musicians and sportspersons) from the entertainer's personal activities as such may be taxed in the Contracting State in which these activities are exercised.
2
Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
3
The provisions of paragraphs 1 and 2 shall not apply to income derived from activities performed in a Contracting State by an entertainer who is a resident of the other Contracting State if the visit to the firstmentioned State is wholly or mainly supported by public funds of the other Contracting State, its political subdivisions or local authorities. In such a case, the income is taxable only in the Contracting State in which the entertainer is resident.
ARTICLE 18 Pensions and annuities
1
Pensions (including government pensions) and annuities paid to a resident of a Contracting State shall be taxable only in that State.
2
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
3
Any alimony or other maintenance payment arising in a Contracting State and paid to a resident of the other Contracting State shall be taxable only in the firstmentioned State.
ARTICLE 19 Government service
1
Salaries, wages and other similar remuneration, other than a pension or annuity, paid by a Contracting State or a political subdivision or local authority of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen of that State; or
(b) did not become a resident of that State solely for the purpose of rendering the services.
2
The provisions of paragraph 1 shall not apply to salaries, wages and other similar remuneration in respect of services rendered in connection with any trade or business carried on by a Contracting State or a political subdivision or local authority of that State. In that case the provisions of Article 15 or Article 16, as the case may be, shall apply.
ARTICLE 20 Professors and teachers
1
Where a professor or teacher who is a resident of a Contracting State visits the other Contracting State for a period not exceeding 2 years for the purpose of teaching or carrying out advanced study or research at a university, college, school or other educational institution wholly or mainly supported by public funds in that other State, any remuneration the person receives for such teaching, advanced study or research shall be exempt from tax in that other State to the extent to which that remuneration is, or upon the application of this Article will be, subject to tax in the firstmentioned State.
2
This Article shall not apply to remuneration which a professor or teacher receives for conducting research if the research is undertaken primarily for the private benefit of a specific person or specific persons.
ARTICLE 21 Students
Where a student, who is a resident of a Contracting State or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of the student's education, receives payments from sources outside that other State for the purpose of the student's maintenance or education, those payments shall be exempt from tax in that other State.ARTICLE 22 Other income
1
Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that State.
2
However, any such income derived by a resident of a Contracting State from sources in the other Contracting State may also be taxed in that other State.
3
The provisions of paragraph 1 shall not apply to income, other than income from real property as defined in paragraph 2 of Article 6, derived by a resident of a Contracting State where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
ARTICLE 23 Source of income
1
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8 and 10 to 19, may be taxed in the other Contracting State shall for the purposes of the law of that other Contracting State relating to its tax be deemed to be income from sources in that other Contracting State.
2
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8 and 10 to 19, may be taxed in the other Contracting State shall for the purposes of Article 24 and of the law of the firstmentioned Contracting State relating to its tax be deemed to be income from sources in the other Contracting State.
ARTICLE 24 Methods of elimination of double taxation
1
In Australia:Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article), Argentine tax paid under the law of Argentina and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Argentina shall be allowed as a credit against Australian tax payable in respect of that income.
2
In Argentina:Where a resident of Argentina derives income which, in accordance with the provisions of this Agreement, may be taxed in Australia, Argentina shall allow as a deduction from the tax on the income of that resident an amount equal to the income tax paid in Australia.
Such deduction shall not, however, exceed that part of the income tax as computed before the deduction is given, which is attributable to the income which may be taxed in Australia.
3
Where under this Agreement income is relieved from tax in a Contracting State and, under the law in force in the other Contracting State, a person, in respect of that income, is subject to tax by reference to that part of the income which is remitted to or received in that other State and not by reference to its full amount, the relief allowed under this Agreement in the firstmentioned State shall apply only to so much of the income as is remitted to or received in, and is subject to tax in, the other State.
4
For the purposes of paragraph 1, tax payable in Argentina by a company which is a resident of Australia in respect of profits attributable to manufacturing activities or to the exploration for or exploitation of natural resources carried on by it in Argentina shall be deemed to include any amount which would have been payable as Argentine tax for any tax year but for an exemption from, or reduction of, tax granted for that year or any part thereof under specific provisions of Argentine legislation that the Treasurer of Australia and the Minister of Economy and Works and Public Services of Argentina in letters exchanged for this purpose agree should be covered by this paragraph 4. Subject to its terms, such an agreement on applicable provisions shall be valid for as long as those provisions are not modified after the date of that agreement or have been modified only in minor respects so as not to affect their general character. The period for which that agreement is to apply is to be agreed in those letters.
ARTICLE 25 Mutual agreement procedure
1
Where a person considers that the actions of one or both of the Contracting States result or will result for the person in taxation not in accordance with this Agreement, the person may, irrespective of the remedies provided by the domestic law of those States concerning taxes to which this Agreement applies, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within 3 years from the first notification of the action resulting in taxation not in accordance with this Agreement.
2
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the domestic law of the Contracting States.
3
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the interpretation or application of this Agreement. They may also consult together for the elimination of double taxation in cases not provided for in this Agreement.
4
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 26 Exchange of information
1
The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out the provisions of this Agreement or of the domestic laws of the Contracting States concerning taxes to which this Agreement applies insofar as the taxation under those laws is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
2
In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the law or the administrative practice of that or of the other Contracting State; or
(b) to supply information which is not obtainable under the law or in the normal course of the administration of that or of the other Contracting State; or
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 27 Members of diplomatic missions and consular posts
Nothing in this Agreement shall affect the fiscal privileges of members of diplomatic missions and consular posts under the general rules of international law or under the provisions of special international agreements.ARTICLE 28 Entry into force
Both Contracting States shall notify each other in writing of the completion of their respective statutory and constitutional procedures required for the entry into force of this Agreement. This Agreement shall enter into force on the date of the last notification, and thereupon this Agreement shall have effect:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a nonresident, in relation to income derived on or after 1 January in the calendar year next following that in which the Agreement enters into force;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(iii) in respect of income, profits or gains from the operation of aircraft to which Article 8 or paragraph 4 of Article 13 of this Agreement applies, in relation to tax on such income, profits or gains of any year of income beginning on or after 27 September 1988;
(b) in Argentina:
(i) in respect of taxes withheld at source, on income derived on or after 1 January in the calendar year next following that in which the Agreement enters into force;
(ii) in respect of other Argentine tax, in relation to tax chargeable for any tax year beginning on or after 1 January in the calendar year next following that in which the Agreement enters into force;
(iii) in respect of income, profits or gains from the operation of aircraft to which Article 8 or paragraph 4 of Article 13 of this Agreement applies, in relation to tax on such income, profits or gains of any year of income beginning on or after 27 September 1988.ARTICLE 29 Termination
This Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a nonresident, in relation to income derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in Argentina:
(i) in respect of taxes withheld at source, in relation to amounts derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Argentine tax, in relation to tax chargeable for any taxable year beginning on or after 1 January in the calendar year next following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorised thereto by their respective Governments, have signed this Agreement.
DONE at Buenos Aires, this twenty-seventh day of August, 1999, in duplicate in the English and Spanish languages, both texts being equally authentic.
PROTOCOL
FOR THE GOVERNMENT OF AUSTRALIA:
MARK VAILE [Signatures omitted]FOR THE GOVERNMENT OF THE ARGENTINE REPUBLIC:
ANDRES CISNEROS
1
With respect to Article 7:
(a) nothing in the Agreement shall be construed as preventing a Contracting State from imposing on the profits attributable to a permanent establishment in that Contracting State, being a permanent establishment of a company which is a resident of the other Contracting State, a tax in addition to the tax which would be payable on the profits of a company which is a resident of the firstmentioned State, provided that any such additional tax shall not exceed 10 per cent of the amount by which the profits attributable to that permanent establishment for a year of income exceeds the tax payable on those profits to the firstmentioned State.
(b) in relation to paragraph 3:
(i) it is understood that a Contracting State shall not be required to allow the total deduction of certain expenses where they are limited in some way in the determination of profits under its domestic tax law or to allow the deduction of any expenditure which, by reason of its nature, is not generally allowed as a deduction under its domestic tax law; and
(ii) no deduction shall be allowed in respect of amounts, if any, paid otherwise than towards reimbursement of actual expenses by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission, for specific services performed or for management, or, except in the case of a banking enterprise, by way of interest on money lent to the permanent establishment. No deduction shall be allowed, in the determination of the profits of a permanent establishment, in respect of amounts received by the permanent establishment otherwise than towards reimbursement of actual expenses from the head office of the enterprise or any other of its branch offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission, for specific services performed or for management, or, except in the case of a banking enterprise, by way of interest on money lent to the head office of the enterprise or any of its other branch offices.
(c) in relation to paragraph 4, the export of goods or merchandise purchased by an enterprise shall, notwithstanding the provisions of subparagraph (d) of paragraph 3 of Article 5 of the Agreement, remain subject to the domestic legislation concerning export.
2
With respect to Article 8, and for the avoidance of doubt, it is understood that the operation of ships or aircraft referred to in that Article includes non-transport activities, such as dredging, fishing, and surveying and that such activities conducted in a place or places in a Contracting State are to be treated as ship or aircraft operations confined solely to places in that State.
3
With respect to Article 12:
(a) the limitations on the taxation at source provided for under paragraph 2 are, in the case of Argentina, subject to the registration requirements provided for in its domestic law;
(b) in the case of Argentina, royalties also includes any paymentderived from the transfer of news by an international news agency but if a resident of Australia is beneficially entitled to that payment the tax charged shall not exceed 3 per cent of the gross amount of the payment.
4
With respect to Article 24:
(a) in relation to paragraph 4, it is understood that if the Treasurer of Australia does not agree that tax forgone by Argentina under an exemption from or reduction of tax granted under specific provisions of Argentine legislation should be deemed to have been Argentine tax paid for the purposes of paragraph 1, Argentina shall apply the rules provided in Article 21 of the Income Tax Law (Law No. 20628 text approved in 1986 and its subsequent modifications) in force at the date of signature of this Agreement;
(b) it is also understood that the period for which tax sparing agreed in an exchange of letters referred to in paragraph 4 is applicable will be 5 years pursuant to the letters and any later years that may be agreed in a further exchange of letters.
5
If, after the date of signature of the Agreement, the Argentine Republic concludes a double tax Agreement with a State that is a member country of the Organisation for Economic Cooperation and Development, and the secondmentioned Agreement:
(a) limits the rate of taxation on dividends to which, under the firstmentioned Agreement, a 10 per cent limit applies to a rate that is lower, or specifies a level of participation in the capital of the company lower than 25 per cent, then the Contracting States shall consult each other with a view to agreeing to a rate or level of participation that is lower than that provided for in the firstmentioned Agreement;
(b) limits the rate of taxation on interest to which, under the firstmentioned Agreement, a 12 per cent limit applies to a rate that is lower than that provided for in the firstmentioned Agreement, then the rate provided for in the secondmentioned Agreement or 10 per cent (whichever is the greater) shall apply for the purposes of paragraph 2 of Article 11 as from the date of entry into force of the secondmentioned Agreement;
(c) limits the rate of taxation on royalties to which, under the firstmentioned Agreement, a 15 per cent limit applies to a rate that is lower than that provided for in the firstmentioned Agreement, then the rate provided for in the secondmentioned Agreement or 10 per cent (whichever is the greater) shall apply for the purposes of paragraph 2(b) of Article 12 as from the date of entry into force of the secondmentioned Agreement.IN WITNESS WHEREOF the undersigned, duly authorised thereto by their respective Governments, have signed this Protocol.
DONE at Buenos Aires, this twenty-seventh day of August, 1999, in duplicate in the English and Spanish languages, both texts being equally authentic.
FOR THE GOVERNMENT OF AUSTRALIA:
MARK VAILE [Signatures omitted]FOR THE GOVERNMENT OF THE ARGENTINE REPUBLIC:
ANDRES CISNEROS
[ CCH Note: The Australia-Argentina double taxation agreement entered into force on 30 December 1999 (Ref: Commonwealth Gazette No GN7 of 23 February 2000).]
Sch 44 inserted by No 149 of 1999.
(Repealed by No 45 of 2011)
History
Sch 45 repealed by No 45 of 2011, s 3 and Sch 1 item 69, to remove the text of the Romanian Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 45 formerly read:
SCHEDULE 45 - Romanian Agreement
Note: See section 3.
AGREEMENT BETWEEN AUSTRALIA AND ROMANIA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Personal scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes covered
1
This Agreement shall apply to the following existing taxes on income:
(a) in Romania:
(i) the tax on income derived by individuals;
(ii) the tax on profit;
(iii) the tax on salaries and other similar remuneration;
(iv) the tax on dividends; and
(v) the tax on agricultural income;
(b) in Australia:
(i) the income tax; andimposed under the federal law of Australia.
(ii) the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources,
2
This Agreement shall also apply to any identical or substantially similar taxes which are imposed under the federal law of Australia or the law of Romania after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in the laws of their respective States relating to the taxes to which this Agreement applies within a reasonable period of time after those changes.
ARTICLE 3 General definitions
1
In this Agreement, unless the context otherwise requires:
(a) the term "Romania" means the state territory of Romania, including its territorial sea and air space over the territory and the territorial sea over which Romania exercises sovereignty, as well as the contiguous zone and the continental shelf and the exclusive economic zone over which Romania exercises, in accordance with its legislation and with the rules and principles of international law, sovereign rights and jurisdiction;
(b) 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; andand 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 seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(c) the term "Contracting State" means Australia or Romania, as the context requires;
(d) the term "person" includes an individual, a company and any other body of persons;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Romania, as the context requires;
(g) the term "tax" means Australian tax or Romanian tax as the context requires, but does not include any penalty or interest imposed under the law of either Contracting State relating to its tax;
(h) the term "Romanian tax" means tax imposed by Romania, being tax to which this Agreement applies by virtue of Article 2;
(i) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(j) 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 Romania, the Minister of Finance or an authorised representative of the Minister;
(k) the term "international traffic" means any transport by a ship or aircraft operated by an enterprise which has its place of effective management in a Contracting State, except when the ship or aircraft is operated solely from a place or between places in the other Contracting State.
2
In the application of this Agreement by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that State relating to the taxes to which this Agreement applies, in force at the time of that application.
ARTICLE 4 Residence
1
For the purposes of this Agreement, the term "resident of a Contracting State" means any person who is a resident of that State in accordance with the taxation laws of that State.
2
A person is not a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
3
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the status of the person shall be determined in accordance with the following rules:
(a) the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person;
(b) if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State with which the person's economic and personal relations are the closer; and
(c) in cases where the status of the person cannot be determined under paragraphs (a) and (b), the competent authorities of the Contracting States shall consult each other.
4
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the Contracting State in which its place of effective management is situated.
ARTICLE 5 Permanent establishment
1
For the purposes of this Agreement, the term "permanent establishment", in relation to an enterprise, means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
2
The term "permanent establishment" shall include especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources;
(g) a farm, plantation or other place where agricultural, other farming, forestry or plantation activities are carried on; and
(h) a building site or construction, installation or assembly project which exists for more than 9 months.
3
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; or
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; or
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; or
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research; or
(f) the sale of goods or merchandise belonging to the enterprise which have been displayed during a non-permanent or occasional fair or exhibition where the goods or merchandise are sold no later than one month after the closing of the said fair or exhibition.
4
An enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if:
(a) it carries on supervisory activities in that State for more than 6 months in connection with a building site, or a construction, installation or assembly project, which is being undertaken in that State; or
(b) substantial equipment is being used in that State for more than 6 months by, for or under contract with the enterprise.
5
A person acting in a Contracting State on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph 6 applies - shall be deemed to be a permanent establishment of that enterprise in the firstmentioned State if:
(a) the person has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) in so acting, the person manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
6
An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a person who is a broker, general commission agent or any other agent of an independent status and is acting in the ordinary course of the person's business as such a broker or agent.
7
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
8
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph 6 of Article 11 and paragraph 5 of Article 12 whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of a Contracting State, has a permanent establishment in a Contracting State.
ARTICLE 6 Income from real property
1
Income from real property 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 Romania, means such property which, according to the laws of Romania, 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; and
(iv) lease and usufruct of immovable property and rights to variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral deposits, oil or gas wells, quarries or other places of extraction or exploitation of natural resources; and
(b) 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; and
(ii) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral deposits, oil or gas wells, quarries or other places of extraction or exploitation of natural resources.Ships and aircraft shall not be regarded as real property.
3
Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, mineral deposits, oil or gas wells, quarries or natural resources, as the case may be, are situated or where the exploration or exploitation may take place.
4
The provisions of paragraph 1 shall apply to income derived from the direct use, letting or use in any other form of real property.
5
Where the ownership of shares or other corporate rights in a company entitles the owner of such shares or corporate rights to use real property held by the company and situated in a Contracting State, the income from such rights may be taxed in that State.
6
The provisions of paragraphs 1, 3 and 4 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.
7
The provisions of paragraph 5 shall also apply to income of an enterprise from a right to use referred to in that paragraph and shall also apply to income from such a right that is used for the performance of independent personal services.
ARTICLE 7 Business profits
1
The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated in that other State. If the enterprise carries on business in that manner, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
2
Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated in that other State, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises.
3
In the determination of the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
4
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article.
6
Where profits include items of income or gains which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
7
Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits from insurance with nonresidents provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied, otherwise than in minor respects so as not to affect its general character, the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
8
Where:
(a) a resident of a Contracting State is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other State,the enterprise carried on by the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated in that other State and that share of business profits shall be attributed to that permanent establishment.
ARTICLE 8 Ships and aircraft
1
Profits of an enterprise derived from the operation of ships or aircraft shall be taxable only in the Contracting State in which the place of effective management of the enterprise is situated.
2
Notwithstanding the provisions of paragraph 1, such profits may be taxed in the other Contracting State to the extent that they are profits derived directly or indirectly from ship or aircraft operations confined solely to places in that other State.
3
If the place of effective management of a shipping enterprise is aboard a ship, then it shall be deemed to be situated in the Contracting State in which the home harbour of the ship is situated, or, if there is no such home harbour, in the Contracting State of which the operator of the ship is resident.
4
The profits to which the provisions of paragraphs 1 and 2 apply include profits from the operation of ships or aircraft derived through participation in a pool service or other profit sharing arrangement.
5
For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise shipped in a Contracting State for discharge at a place in that State shall be treated as profits from ship or aircraft operations confined solely to places in that State.
ARTICLE 9 Associated enterprises
1
Where:
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might have been expected to accrue to one of the enterprises, but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2
Nothing in paragraph 1 shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the income to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
3
Where profits on which an enterprise of a Contracting State has been charged to tax in that State are also included, by virtue of paragraph 1 or 2, in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might have been expected to have operated between independent enterprises dealing wholly independently with one another, then the firstmentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the firstmentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
1
Dividends paid by a company which is a resident of a Contracting State for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2
However, those dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed:
(a) 5 per cent of the gross amount of the dividends, to the extent to which those dividends are paid out of profits that have borne the normal rate of company tax, where those dividends are paid to a company (other than a partnership) which holds directly at least 10 per cent of the capital of the company paying the dividends; and
(b) 15 per cent of the gross amount of the dividends in all other cases,provided that if the relevant law in either Contracting State at the date of signature of this Agreement is varied, otherwise than in minor respects so as not to affect its general character, the Contracting States shall consult each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
3
For the purposes of paragraph 2, profits have borne the normal rate of company tax:
(a) in Romania, where they have been subject to the profits tax; and
(b) in Australia, to the extent to which the dividends have been fully "franked" in accordance with its law relating to tax.
4
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the law, relating to tax, of the Contracting State of which the company making the distribution is a resident for the purposes of its tax.
5
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
6
Dividends paid by a company which is a resident of a Contracting State, being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled, shall be exempt from tax in that other State except in so far as the holding in respect of which the dividends are paid is effectively connected with a permanent establishment or fixed base situated in that other State. This paragraph shall not apply in relation to dividends paid by any company which is a resident of Australia for the purposes of Australian tax and which is also a resident of Romania for the purposes of Romanian tax.HistoryArt 10 amended by No 129 of 2002.
ARTICLE 11 Interest
1
Interest arising in a Contracting State, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2
However, that interest may also be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3
Interest derived from the investment of official funds by the Government of a Contracting State, its monetary institutions or a bank performing central banking functions in that State, shall be exempt from tax in the other Contracting State.
4
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, interest from any other form of indebtedness and all other income assimilated to income from money lent by the law, relating to tax, of the Contracting State in which the income arises.
5
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the interest, being a resident of a Contracting State, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the indebtedness in respect of which the interest is paid is effectively connected with that permanent establishment or fixed base. In that case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
6
Interest shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision, local authority or an administrative-territorial unit of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment or fixed base, then the interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
7
Where, owing to a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of that relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 12 Royalties
1
Royalties arising in a Contracting State, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2
However, those royalties may also be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
3
The term "royalties" in this Article meanspayments 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; or
(b) the use of, or the right to use, any industrial, commercial or scientific equipment; or
(c) the supply of scientific, technical, industrial or commercial knowledge or information; or
(d) the supply of any assistance that is 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); or
(e) the reception of, or the right to receive, visual images or sounds, or both, transmitted to the public by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; or
(f) the use in connection with television broadcasting or radio broadcasting, or the right to use in connection with television broadcasting or radio broadcasting, visual images or sounds, or both, transmitted by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; or
(g) the use of, or the right to use:
(i) motion picture films; or
(ii) films or video tapes for use in connection with television; or
(iii) tapes for use in connection with radio broadcasting; or
(h) total or partial forbearance in respect of the use or supply of any property or right referred to in this paragraph.
4
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the royalties, being a resident of a Contracting State, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the property or right in respect of which the royalties are paid or credited is effectively connected with that permanent establishment or fixed base. In that case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
5
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself or a political subdivision, local authority or an administrative-territorial unit of that State or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law, relating to tax, of each Contracting State, but subject to the other provisions of this Agreement.
ARTICLE 13 Income, profits or gains from the alienation of property
1
Income, profits or gains derived by a resident of a Contracting State from the alienation of real property situated in the other Contracting State may be taxed in that other State.
2
Income, profits or gains from the alienation of property, other than real property, that forms part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or pertains to a fixed base available in that other State to a resident of the firstmentioned State for the purpose of performing independent personal services, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise) or of that fixed base, may be taxed in that other State.
3
Income, profits or gains from the alienation of ships or aircraft operated in international traffic, or of property (other than real property) pertaining to the operation of those ships or aircraft, shall be taxable only in the Contracting State in which the place of effective management of the enterprise alienating those ships, aircraft or other property is situated.
4
Income, profits or gains derived by a resident of a Contracting State from the alienation of any shares or other interests in a company, or of an interest of any kind in a partnership, trust or other entity, where the value of the assets of such entity, whether they are held directly or indirectly (including through one or more interposed entities, such as, for example, through a chain of companies), is principally attributable to real property situated in the other Contracting State, may be taxed in that other State.
5
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of property other than that to which any of the preceding paragraphs of this Article apply.
6
In this Article, the term "real property" has the same meaning as it has in Article 6.
7
The situation of real property shall be determined for the purposes of this Article in accordance with the provisions of paragraph 3 of Article 6.
ARTICLE 14 Independent personal services
1
Income derived by an individual who is a resident of a Contracting State in respect of professional services or other independent activities of a similar character shall be taxable only in that State unless a fixed base is regularly available to the individual in the other Contracting State for the purpose of performing the individual's activities. If such a fixed base is available to the individual, the income may be taxed in the other State but only so much of it as is attributable to activities exercised from that fixed base.
2
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent personal services
1
Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by an individual who is a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
2
Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the firstmentioned State if:
(a) the recipient is present in that other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the fiscal year concerned of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State.
3
Notwithstanding the preceding provisions of this Article, remuneration in respect of an employment exercised aboard a ship or aircraft operated in international traffic may be taxed in the Contracting State in which the place of effective management of the enterprise is situated.
ARTICLE 16 Directors' fees
Directors' fees and similar payments derived by a resident of a Contracting State as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers and sportspersons
1
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians) and sportspersons from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
2
Where income in respect of the personal activities of an entertainer or sportsperson as such accrues not to that entertainer or sportsperson but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or sportsperson are exercised.
3
Notwithstanding the provisions of paragraphs 1 and 2, income derived in respect of activities referred to in paragraph 1 within the framework of a cultural or sports exchange program agreed to by the Governments of the Contracting States and carried out other than for the purpose of profit, shall be exempted from tax in the Contracting State in which these activities are exercised.
ARTICLE 18 Pensions and annuities
1
Pensions (including government pensions) and annuities paid to a resident of a Contracting State shall be taxable only in that Contracting State.
2
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
3
Any alimony or other maintenance payment arising in a Contracting State and paid to a resident of the other Contracting State shall be taxable only in the firstmentioned State.
ARTICLE 19 Government service
1
Remuneration, other than a pension or annuity, paid by a Contracting State or a political subdivision, local authority or administrative-territorial unit of that State to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) has the citizenship of that State; or
(b) did not become a resident of that State solely for the purpose of performing the services.
2
The provisions of paragraph 1 shall not apply to remuneration in respect of services rendered in connection with any trade or business carried on by a Contracting State or a political subdivision, local authority or administrative-territorial unit of that State. In that case, the provisions of Article 15 or Article 16, as the case may be, shall apply.
ARTICLE 20 Students
Where a student, who is a resident of a Contracting State or who was a resident of that State immediately before visiting the other Contracting State and who is present in that other State solely for the purpose of the student's education for a period not exceeding seven years, receives payments from sources outside that other State for the purpose of the student's maintenance or education, those payments shall be exempt from tax in that other State.ARTICLE 21 Income not expressly mentioned
1
Items of income of a resident of a Contracting State which are not expressly mentioned in the foregoing Articles of this Agreement shall be taxable only in that State.
2
However, any such income derived by a resident of a Contracting State from sources in the other Contracting State may also be taxed in that other State.
3
The provisions of paragraph 1 shall not apply to income, other than income from real property as defined in paragraph 2 of Article 6, derived by a resident of a Contracting State where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In that case, the provisions of Article 7 or Article 14, as the case may be, shall apply.
ARTICLE 22 Source of income
1
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8, 10 to 19 and 21, may be taxed in the other Contracting State shall for the purposes of the law of that other Contracting State relating to its tax be deemed to be income from sources in that other Contracting State.
2
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8, 10 to 19 and 21, may be taxed in the other Contracting State shall for the purposes of Article 23 and of the law of the firstmentioned Contracting State relating to its tax be deemed to be income from sources in the other Contracting State.
ARTICLE 23 Methods of elimination of double taxation
1
In the case of Romania, double taxation shall be eliminated as follows:
(a) subject to subparagraph (b), where a resident of Romania derives income, profits or gains which, in accordance with the provisions of this Agreement, are taxable in Australia, then Romania shall exempt from tax such income, profits or gains. However Romania may, in calculating the amount of tax on the remaining income of that resident, take into account the exempted income, profits or gains; and
(b) where a resident of Romania derives items of income which, in accordance with the provisions of Articles 10, 11 and 12, may be taxed in Australia, Romania shall allow as a deduction from the tax on the income of that resident an amount equal to the tax paid in Australia. However, that deduction shall not exceed that part of the tax, as computed before the deduction is given, which is attributable to that income from Australia.
2
In the case of Australia, double taxation shall be eliminated as follows:
(a) subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article), Romanian tax paid under the law of Romania and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Romania shall be allowed as a credit against Australian tax payable in respect of that income; and
(b) where a company which is a resident of Romania and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 per cent of the voting power of the firstmentioned company, the credit referred to in subparagraph (a) shall include the Romanian tax paid by that firstmentioned company in respect of that portion of its profits out of which the dividend is paid.
ARTICLE 24 Mutual agreement procedure
1
Where a person who is a resident of a Contracting State considers that the actions of the competent authority of one or both of the Contracting States result or will result for the person in taxation not in accordance with this Agreement, the person may, notwithstanding the remedies provided by the domestic laws of those States, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within three years from the first notification of the action giving rise to taxation not in accordance with this Agreement.
2
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at an appropriate solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the domestic laws of the Contracting States.
3
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the application of this Agreement.
4
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 25 Exchange of information
1
The competent authorities of the Contracting States shall exchange such information as is necessary for the carrying out of this Agreement or of the domestic laws of the Contracting States concerning the taxes to which this Agreement applies in so far as the taxation under those laws is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by the competent authority of a Contracting State shall be treated as secret in the same manner as information obtained under the domestic laws of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies and shall be used only for such purposes. Those persons or authorities may disclose the information in public court proceedings or in judicial decisions.
2
In no case shall the provisions of paragraph 1 be construed so as to impose on the competent authority of a Contracting State the obligation:
(a) to carry out administrative measures at variance with the laws or the administrative practice of that or of the other Contracting State; or
(b) to supply information which is not obtainable under the laws or in the normal course of the administration of that or of the other Contracting State; or
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 26 Members of diplomatic missions and consular posts
Nothing in this Agreement shall affect the fiscal privileges of members of diplomatic missions or consular posts under the general rules of international law or under the provisions of special agreements.ARTICLE 27 Entry into force
Both Contracting States shall notify each other in writing of the completion of their respective constitutional and legal procedures required for the entry into force of this Agreement. This Agreement shall enter into force on the date of the last notification, and thereupon the Agreement shall have effect:
(a) in Romania:
in respect of taxes on income, profits and gains for the taxable period starting from 1 January of the next calendar year following that in which the Agreement enters into force;
(b) in Australia:
(i) in respect of withholding tax on income that is derived by a nonresident, in relation to income derived on or after 1 January in the calendar year next following that in which the Agreement enters into force;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the Agreement enters into force.ARTICLE 28 Termination
This Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of five years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in Romania:
in respect of taxes on income, profits and gains for the taxable period starting from 1 January of the next calendar year following that in which the notice of termination is given;
(b) in Australia:
(i) in respect of withholding tax on income that is derived by a nonresident, in relation to income derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Agreement.
DONE in duplicate at Canberra, this second day of February, Two thousand, in the English and Romanian languages, both texts being equally authentic.
PROTOCOL
FOR AUSTRALIA:
ROD KEMP [Signatures omitted]FOR ROMANIA:
MANUELA VULPE
If, in an agreement for the avoidance of double taxation that may subsequently be concluded between Australia and a third State, there is included a Non-discrimination Article, Australia shall immediately inform Romania in writing through the diplomatic channel and shall enter into negotiations with Romania in order to provide the same treatment for Romania as may be provided for the third State.
IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Protocol.
DONE in duplicate at Canberra, this second day of February, Two thousand, in the English and Romanian languages, both texts being equally authentic.
FOR AUSTRALIA:
ROD KEMP [Signatures omitted]FOR ROMANIA:
MANUELA VULPE
Sch 45 inserted by No 100 of 2000.
(Repealed by No 45 of 2011)
History
Sch 46 repealed by No 45 of 2011, s 3 and Sch 1 item 69, to remove the text of the Russian Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 46 formerly read:
SCHEDULE 46 - Russian Agreement
Note: See section 3.
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE RUSSIAN FEDERATION FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME[ CCH Note: This Agreement came into effect on 1 July 2004.]
ARTICLE 1 Personal scope
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes covered
1
The existing taxes to which this Agreement shall apply are:
(a) in Australia:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of Australia;
(b) in Russia:
(i) tax on profits (income) of enterprises and organisations; and
(ii) tax on the income of individuals.
2
This Agreement shall apply also to any identical or substantially similar taxes which are imposed under the federal law of Australia or the federal law of Russia after the date of signature of this Agreement in addition to, or in place of, the existing taxes.
ARTICLE 3 General definitions
1
For the purposes of this Agreement, unless the context otherwise requires:
(a) the terms "Contracting State" and "other Contracting State" mean Australia or Russia, as the context requires;
(b) - the term "Australia" means the territory of Australia including only the following external territories:
(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; andand includes the exclusive economic zone and continental shelf of Australia (including the territories specified) 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 natural resources of the seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
- the term "Russia" means the territory of the Russian Federation and includes its exclusive economic zone and continental shelf, defined in accordance with international law;
(c) the term "Australian tax" means tax imposed by Australia, being tax to which this Agreement applies by virtue of Article 2;
(d) the term "Russian tax" means tax imposed by Russia, being tax to which this Agreement applies by virtue of Article 2;
(e) the term "person" includes an individual, an enterprise, a company and any other body of persons;
(f) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(g) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean an enterprise carried on by a resident of Australia or an enterprise carried on by a resident of Russia, as the context requires;
(h) the term "international traffic" means any transportation by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely between places in the other Contracting State;
(i) the term "competent authority" means:
- in the case of Australia, the Commissioner of Taxation or an authorised representativeof the Commissioner; and
- in the case of Russia, the Ministry of Finance of the Russian Federation or its authorised representative;
(j) the term "tax" means Australian tax or Russian tax, as the context requires, but does not include any penalty or interest imposed under the law of either Contracting State relating to its tax.
2
As regards the application of this Agreement at any time by a Contracting State, any term not defined in this Agreement shall, unless the context otherwise requires, have the meaning which it has at that time under the law of that State. In case of divergence between the law of that State concerning the taxes to which this Agreement applies and any other law of that State the law concerning the taxes to which this Agreement applies shall prevail.
ARTICLE 4 Residence
1
For the purposes of this Agreement, a person is a resident of a Contracting State if the person is a resident of that State under the law of that State relating to its tax.
2
A person is not a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
3
Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person, or if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State with which the person's personal and economic relations are closer. For the purpose of this paragraph, an individual's citizenship of one of the Contracting States shall be a factor in determining the degree of the individual's personal and economic relations with that Contracting State.
4
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident solely of the State in which its place of effective management is situated.
ARTICLE 5 Permanent establishment
1
For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which an enterprise of a Contracting State wholly or partly carries out business activities in the other State.
2
The term "permanent establishment" includes:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place relating to the exploration for or exploitation of natural resources;
(g) an agricultural, pastoral or forestry property; and
(h) a building site or construction, installation or assembly project or supervisory activities in connection with them, but only if such site, project or activities continue for a period of more than 12 months.
3
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage or display of goods or merchandise belonging to the enterprise; or
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage or display; or
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; or
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
4
Notwithstanding the provisions of the preceding paragraphs, an enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if:
(a) a person acting in a Contracting State on behalf of an enterprise of the other Contracting State manufactures or processes in the firstmentioned State for the enterprise goods or merchandise belonging to the enterprise; or
(b) heavy industrial equipment including, for example, but not limited to, a platform, installation, drilling rig, or heavy machinery is being used in the firstmentioned State by, for or under contract with the enterprise.
5
A person acting in a Contracting State on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph 6 applies - shall be deemed to be a permanent establishment of that enterprise in the firstmentioned State if the person:
(a) has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise; or
(b) has no such authority but maintains in the firstmentioned State a stock of goods or merchandise from which delivery is made within that State on behalf of the enterprise.
6
An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a person who is a broker, general commission agent or any other agent of an independent status and is acting in the ordinary course of the person's business.
7
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
ARTICLE 6 Income from real property
1
Income from real property may be taxed in the Contracting State where such property is situated.
2
In this Article, the term "real property":
(a) for Australia, has the meaning which it has under the law of Australia, and includes:
(i) land and any other interest in or over land, whether improved or not, including a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine those deposits or resources; and
(ii) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources;
(b) for Russia, means immovable property according to the law of Russia, and includes:
(i) property accessory to immovable property; and
(ii) rights known as usufruct of immovable property; and
(iii) rights to which the provisions of the law respecting landed property apply; and
(iv) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources; and
(c) for both Contracting States does not include ships, boats and aircraft.
3
Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
4
The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of real property.
5
The provisions of paragraphs 1, 3 and 4 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.
ARTICLE 7 Business profits
1
The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated in that other State. If the enterprise carries on business in that manner, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
2
Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated in that other State, there shall in each Contracting State be attributed to that permanent establishment the profits which it might reasonably be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
3
In determining the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
4
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5
Where profits include items which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
ARTICLE 8 Profits from the operation of ships and aircraft
1
Profits of an enterprise of a Contracting State derived from the operation of ships or aircraft shall be taxable only in that State.
2
Notwithstanding the provisions of paragraph 1, such profits may be taxed in the other Contracting State to the extent that they are profits derived from ship or aircraft operations confined solely to places in that other State.
3
The profits to which the provisions of paragraphs 1 and 2 apply include profits from the operation of ships or aircraft derived through participation in a pool service or other profit sharing arrangement.
ARTICLE 9 Adjustments to profits of associated enterprises
1
Where:
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might reasonably be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might reasonably have been expected to accrue to one of the enterprises but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2
Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including where the information available to the competent authority of that State is inadequate to determine the profits accruing to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
3
Where profits on which an enterprise of a Contracting State has been charged to tax in that State are also included, by virtue of the provisions of paragraph 1 or 2, in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might reasonably have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might reasonably have been expected to have operated between independent enterprises dealing wholly independently with one another, then the firstmentioned State shall make an appropriate adjustment to the amount of tax charged on those profits in the firstmentioned State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10 Dividends
1
Dividends paid by a company which is a resident of a Contracting State for the purposes of its tax, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2
However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident for the purposes of its tax, and according to the law of that State, but the tax so charged shall not exceed:
(a) 5 per cent of the gross amount of the dividends:
(i) to the extent to which those dividends are paid out of profits that have borne the normal rate of tax, where those dividends are paid to a company (other than a partnership) which holds directly at least 10 per cent of the capital of the company paying the dividends; and
(ii) provided that the resident of the other Contracting State has invested a minimum of 700,000 Australian Dollars or an equivalent amount in Russian Roubles in the capital of that company; and
(iii) where, if the dividends are paid by a company that is resident in Russia, the dividends are exempt from Australian tax; and
(b) 15 per cent of the gross amount of the dividends in all other cases.
3
For the purposes of subparagraph (a) of paragraph 2 of this Article, profits have borne the normal rate of tax:
(a) in Australia, to the extent to which the dividends have credits attached for tax paid on their profits by Australian companies in accordance with its law relating to tax; and
(b) in Russia, to the extent that they are assessable to tax.
4
The term "dividends" as used in this Article means income from shares, as well as other amounts which are subjected to the same taxation treatment as income from shares by the law of the State of which the company making the distribution is a resident for the purposes of its tax.
5
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
6
Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company - being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled - except insofar as the holding in respect of which such dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, even if the dividends paid consist wholly or partly of profits or income arising in such other State. This paragraph shall not apply in relation to dividends paid by any company which is a resident of a Contracting State for the purposes of its tax and which is also a resident of the other Contracting State for the purposes of the other Contracting State's tax.
ARTICLE 11 Interest
1
Interest arising in a Contracting State, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2
However, that interest may also be taxed in the Contracting State in which it arises, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, including premiums and prizes attaching to such securities, bonds and debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, interest from any other form of indebtedness and all other income assimilated to income from money lent by the law, relating to tax, of the Contracting State in which the income arises.
4
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the interest, being a resident of a Contracting State, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the indebtedness in respect of which the interest is paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5
Interest shall be deemed to arise in a Contracting State when the payer is that State itself, a political subdivision or a local authority of that State, or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment or fixed base, then the interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6
Where, by reason of a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might reasonably have been expected to have been agreed upon by the payer and the person so entitled in the absence of that relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Agreement.
ARTICLE 12 Royalties
1
Royalties arising in a Contracting State, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2
However, those royalties may also be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
3
The term "royalties" in this Article means amounts paid or credited as due and payable, 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; or
(b) the use of, or the right to use, any industrial, commercial or scientific equipment; or
(c) the supply of scientific, technical, industrial or commercial knowledge or information; or
(d) the supply of any assistance that is incidental, 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); or
(e) the use of, or the right to use:
(i) motion picture films; or
(ii) films or video tapes for use in connection with television; or
(iii) tapes for use in connection with radio broadcasting; or
(f) the reception of, or the right to receive, visual images or sounds, or both, transmitted to the public by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; or
(g) the use in connection with television broadcasting or radio broadcasting, or the right to use in connection with television broadcasting or radio broadcasting, visual images or sounds, or both, transmitted by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; or
(h) the use of, or the right to use, some or all of the part of the radiofrequency spectrum specified in a relevant licence; or
(i) total or partial forbearancein respect of the use or supply of any property or right referred to in this paragraph.
4
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the royalties, being a resident of a Contracting State, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the property or right in respect of which the royalties are paid or credited is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5
Royalties shall be deemed to arise in a Contracting State when the payer is that State itself, a political subdivision or a local authority of that State, or a person who is a resident of that State for the purposes of its tax. Where, however, the person paying the royalties, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might reasonably have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Agreement.
ARTICLE 13 Income from alienation of property
1
Income or profits derived by a resident of a Contracting State from the alienation of real property situated in the other Contracting State may be taxed in that other State. The meaning of the term "real property", and its situation, shall be determined in accordance with Article 6.
2
Income or profits from the alienation of property, other than real property, that forms part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or pertains to a fixed base available in that other State to a resident of the firstmentioned State for the purpose of performing independent personal services, including income or profits from the alienation of that permanent establishment (alone or with the whole enterprise) or of that fixed base, may be taxed in that other State.
3
Income or profits from the alienation of ships or aircraft operated by an enterprise of a Contracting State in international traffic, or of property (other than real property) pertaining to the operation of those ships or aircraft, shall be taxable only in that State.
4
Income or profits derived by a resident of a Contracting State from the alienation of any shares or other interests in a company, or of an interest of any kind in a partnership, trust or other entity, where the value of the assets of such entity, whether they are held directly or indirectly (including through one or more interposed entities, such as, for example, through a chain of companies), is principally attributable to real property, situated in the other Contracting State, may be taxed in that other State.
5
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of capital gains derived from the alienation of any property other than that to which any of the preceding paragraphs of this Article apply.
ARTICLE 14 Income from independent personal services
1
Income derived by an individual who is a resident of a Contracting State in respect of professional services or other activities of an independent character shall be taxable only in that State unless a fixed base is regularly available to the individual in the other Contracting State for the purpose of performing the individual's activities. If such a fixed base is available to the individual, the income may be taxed in the other State but only so much of it as is attributable to that fixed base.
2
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Income from employment
1
Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by an individual who is a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
2
Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the firstmentioned State if:
(a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the year of income of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not borne by a permanent establishment or a fixed base which the employer has in the other State.
3
Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated by an enterprise of a Contracting State in international traffic may be taxed in that State.
ARTICLE 16 Directors' fees
Directors' fees and other similar payments derived by a resident of a Contracting State in that person's capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Income of entertainers and sportspersons
1
Notwithstanding the provisions of Articles 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians) and sportspersons from their personal activities as such may be taxed in the Contracting State in which these activities are exercised.
2
Where income in respect of the personal activities of an entertainer or sportsperson as such accrues not to that person but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or sportsperson are exercised.
ARTICLE 18 Pensions and annuities
1
Subject to the provisions of paragraph 2 of Article 19, pensions and annuities paid to a resident of a Contracting State shall be taxable only in that State.
2
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
ARTICLE 19 Income from government service
1
Salaries, wages and other similar remuneration, other than a pension or annuity, paid by a Contracting State, a political subdivision or local authority of that State to an individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen of that State; or
(b) did not become a resident of that State solely for the purpose of rendering the services.
2
(a) Any pension paid by, or out of the funds created by, a Contracting State, a political subdivision or a local authority of that State, to an individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State.
(b) However, that pension shall be taxable only in the other Contracting State if the individual:
(i) is a resident of, and a citizen of that State; and
(ii) the services in respect of which that pension is paid were rendered in that State.
3
The provisions of paragraphs 1 and 2 shall not apply to salaries, wages and other similar remuneration or to pensions in respect of services rendered in connection with any trade or business carried on by a Contracting State or a political subdivision or local authority of that State. In that case, the provisions of Articles 15, 16 or 18, as the case may be, shall apply.
ARTICLE 20 Payments to students
Where a student, who is a resident of a Contracting State or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present in that other State solely for the purpose of the student's education, receives payments from sources outside that other State for the purpose of the student's maintenance or education, those payments shall be exempt from tax in that other State.ARTICLE 21 Other income
1
Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that State.
2
The provisions of paragraph 1 shall not apply to income, other than income from real property as defined in paragraph 2 of Article 6, derived by a resident of a Contracting State where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
3
Notwithstanding the provisions of paragraphs 1 and 2, items of income of a resident of a Contracting State not dealt with in the foregoing Articles of this Agreement derived from sources in the other Contracting State may also be taxed in that other State.
ARTICLE 22 Methods of elimination of double taxation
1
Subject to the law of Australia as it may be amended from time to time (without changing the general principle of this Article), Russian tax paid under the law of Russia, and in accordance with this Agreement, whether directly or by deduction in respect of income derived from sources in Russia by a resident of Australia, shall be allowed as a credit against Australian tax payable in respect of that income.
2
Subject to the law of Russia as it may be amended from time to time (without changing the general principle of this Article), Australian tax paid under the law of Australia, and in accordance with this Agreement, whether directly or by deduction in respect of income derived from sources in Australia by a resident of Russia, shall be allowed as a credit against Russian tax payable in respect of that income.
ARTICLE 23 Limitation of benefits
1
The benefits of this Agreement shall not apply to income or profits arising from:
(a) activities such as banking, shipping, financing or insurance, and Internet activities; or
(b) activities such as headquarter or coordination centre or similar arrangements providing company or group administration, financing or other support; or
(c) activities which give rise to passive income, such as dividends, interest and royalties; or
(d) other activities the performance of which do not require substantial presence in the State of source,where, under the laws or administrative practices of a Contracting State, such income or profits are preferentially taxed and, in relation thereto, information is accorded confidential treatment beyond the usual or general protection of information accorded for tax purposes under the laws or administrative practices of that State.
2
For the purposes of paragraph 1, income or profits are preferentially taxed in a Contracting State if, other than by reason of the preceding Articles of this Agreement, an amount of income or profits:
(a) is exempt from tax; or
(b) is included in taxable income of a taxpayer but that amount is subject to a rate of tax that is lower than the rate applicable to an equivalent amount that is included in the tax base of similar taxpayers who are residents of that State; or
(c) a credit, rebate or other concession or benefit is provided directly or indirectly in relation to that income or profits, other than a credit for foreign tax paid.
ARTICLE 24 Mutual agreement procedure
1
Where a person considers that the actions of one or both of the Contracting States result or will result for the person in taxation not in accordance with this Agreement, the person may, irrespective of the remedies provided by the domestic law of those States concerning taxes to which this Agreement applies, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within 3 years from the first notification of the action resulting in taxation not in accordance with this Agreement.
2
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with this Agreement. The solution so reached shall be implemented notwithstanding any time limits in the domestic law of the Contracting States.
3
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the interpretation or application of this Agreement. They may also consult together for the avoidance of double taxation in cases not provided for in this Agreement.
4
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
ARTICLE 25 Exchange of information
1
The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out the provisions of this Agreement or of the domestic law of the Contracting States concerning taxes to which this Agreement applies insofar as the taxation under that law is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by a Contracting State shall be treated as confidential in the same manner as information obtained under the domestic law of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
2
In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation:
(a) to carry out administrative measures at variance with the law or the administrative practice of that or of the other Contracting State; or
(b) to supply information which is not obtainable under the law or in the normal course of the administration of that or of the other Contracting State; or
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 26 Members of diplomatic missions and consular posts
Nothing in this Agreement shall affect the fiscal privileges of members of diplomatic missions and consular officials under the rules of general international law or under the provisions of special international agreements.ARTICLE 27 Entry into force
Both Contracting States shall notify each other in writing through the diplomatic channel of the completion of their respective procedures required for the entry into force of this Agreement. This Agreement shall enter into force on the date of the last notification, and thereupon the provisions of this Agreement shall have effect:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a nonresident, in relation to income derived on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(ii) in respect of otherAustralian tax, in relation to income or profits of any year of income beginning on or after 1 July in the calendar year next following that in which the Agreement enters into force;
(b) in Russia:
for taxable years and periods beginning on or after 1 January in the calendar year next following that in which the Agreement enters into force.ARTICLE 28 Termination
This Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, the provisions of the Agreement shall cease to be effective:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a nonresident, in relation to income derived on or after 1 July in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income or profits of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given;
(b) in Russia:
for taxable years and periods beginning on or after 1 January in the calendar year next following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorised thereto by their respective Governments, have signed this Agreement.
DONE at Canberra, on 7 September 2000, in duplicate, each in the English and Russian languages, both texts being equally authentic.
PROTOCOL TO THE AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE RUSSIAN FEDERATION FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
FOR THE GOVERNMENT OF AUSTRALIA:
ROD KEMP [Signatures omitted]FOR THE GOVERNMENT OF THE RUSSIAN FEDERATION:
SERGEI SHATALOV
HAVE AGREED on the following, which shall form an integral part of the Agreement:
1 With respect to the Agreement as a whole (including this Protocol):
(a) income or profits derived by a resident of a Contracting State which, under at least one of Articles 6 to 8, 10 to 17 and 19, may be taxed in the other Contracting State shall, for the purposes of Article 22 and of the income tax laws of the respective Contracting States, be deemed to be income from sources in that other State; and (b) the terms "income" and "profits" shall, in the case of Australia, include capital gains. 2 With respect to Articles 13 and 15: the term "international traffic" shall not include any transportation which commences at a place in a Contracting State and returns to that place, after travelling through international waters, but not visiting another State (including, but not limited to, the other Contracting State) or Territory (other than a Territory of the firstmentioned Contracting State). 3 With respect to Article 3: nothing in subparagraph (b) of paragraph 1 of Article 3 is intended to vary the effect as between the Contracting States of paragraph 2 of Article IV of the Antarctic Treaty done at Washington on 1 December 1959. 4 With respect to Article 5: the principles set forth in Article 5 shall be applied in determining for the purposes of paragraph 5 of Article 11 and paragraph 5 of Article 12 whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of a Contracting State, has a permanent establishment in a Contracting State. 5 With respect to Article 7:
(a) nothing in Article 7 shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article. For the purposes of this paragraph, "competent authority" for Russia includes the Ministry of Taxes and Duties; (b) nothing in Article 7 shall affect the application of any law of a Contracting State relating to tax imposed on profits from insurance contracts entered into with nonresidents provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult each other with a view to agreeing to any amendment of this paragraph that may be appropriate; and (c) where:
(i) a resident of a Contracting State is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and (ii) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other State, the enterprise carried on by the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated in that other State and that share of business profits shall be attributed to that permanent establishment. 6 With respect to Article 8: the expression "profits derived from ship or aircraft operations confined solely to places in that other State" includes profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise which are shipped in a Contracting State and are discharged at a place in that State. 7 With respect to Article 9:
(a) it is understood that a Contracting State that is being asked to grant relief in respect of an adjustment made by the other Contracting State is not compelled to make an adjustment simply because the other State has increased the amount of profits subject to tax but is entitled to satisfy itself that the adjustment made by that other State really produces an outcome in conformity with internationally accepted principles for transfer pricing adjustments before granting any relief; and (b) for the purposes of paragraph 2 of this Article, "competent authority" for Russia includes the Ministry of Taxes and Duties. 8 With respect to Article 10: without limiting any other provision of this Agreement regarding notification and consultation on changes to the taxation systems of the Contracting States, if the relevant law in either Contracting State at the date of signature of this Agreement is varied, otherwise than in minor respects so as not to affect its general character, the Contracting States shall consult each other with a view to agreeing to any amendment of paragraph 2 that may be appropriate. IN WITNESS WHEREOF the undersigned, duly authorised thereto, have signed this Protocol.
DONE at Canberra, on 7 September 2000, in duplicate, each in the English and Russian languages, both texts being equally authentic.
FOR THE GOVERNMENT OF AUSTRALIA:
ROD KEMP [Signatures omitted]FOR THE GOVERNMENT OF THE RUSSIAN FEDERATION:
SERGEI SHATALOV
Sch 46 inserted by No 59 of 2002. The Agreement came into effect on 1 July 2004.
(Repealed by No 45 of 2011)
History
Sch 47 repealed by No 45 of 2011, s 3 and Sch 1 item 69, to remove the text of the Mexican Agreement and Protocol from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 47 formerly read:
SCHEDULE 47 - Mexican Agreement and Protocol
Note: See section 3.
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE UNITED MEXICAN STATES FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
ARTICLE 1 Persons covered
This Agreement shall apply to persons who are residents of one or both of the Contracting States.ARTICLE 2 Taxes covered
1
The existing taxes to which this Agreement shall apply are:
(a) in Mexico:
the federal income tax (el impuesto sobre la renta federal);
(b) in Australia:
the income tax, and the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of Australia.
2
This Agreement shall apply also to any identical or substantially similar taxes which are imposed under the federal laws of Mexico and Australia after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any significant changes which have been made in the laws of their respective States relating to the taxes to which this Agreement applies, and to its application, within a reasonable period of time after those changes.
ARTICLE 3 General definitions
1
For the purposes of this Agreement, unless the context otherwise requires:
(a) the term "Mexico" means the United Mexican States; when used in a geographical sense, it includes the territory of the United Mexican States: being the integrated parts of the Federation; the islands, including the reefs and cays in the adjacent waters; the islands of Guadalupe and Revillagigedo; the continental shelf and the seabed and submarine shelves of the islands, cays and reefs, where Mexico may exercise sovereign rights in accordance with international law; the waters of the territorial seas to the extent and limits established by international law and the inland waters; and the airspace of the national territory to the extent and upon the conditions established by international law; and the exclusive economic zone outside the territorial sea within which Mexico may exercise sovereign rights in accordance with its domestic law and international law;
(b) 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; andand 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 seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(c) the term "Mexican tax" means the tax imposed by Mexico, being the tax to which this Agreement applies by virtue of Article 2;
(d) the term "Australian tax" means the taxes imposed by Australia, being the taxes to which this Agreement applies by virtue of Article 2;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) the term "competent authority" means:
(i) in the case of Mexico, the Ministry of Finance and Public Credit;
(ii) in the case of Australia, the Commissioner of Taxation or an authorised representative of the Commissioner;
(g) the terms "a Contracting State" and "the other Contracting State" mean Mexico or Australia, as the context requires;
(h) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean, respectively, an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State;
(i) the term "international traffic" means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely from a place or between places in the other Contracting State;
(j) the term "person" includes an individual, a company and any other body of persons;
(k) the term "tax" means Mexican tax or Australian tax, as the context requires, but does not include any penalty or interest imposed under the law of either Contracting State relating to its tax.
2
As regards the application of this Agreement at any time by a Contracting State, any term not defined herein shall, unless the context otherwise requires, have the meaning which it has at that time under the law of that State concerning the taxes to which this Agreement applies, any meaning under the applicable tax laws of that State prevailing over a meaning given to the term under other laws of that State.
ARTICLE 4 Resident
1
For the purposes of this Agreement, a person is a resident of a Contracting State if the person is a resident of that Contracting State for the purposes of its tax.
2
A person is not a resident of a Contracting State for the purposes of this Agreement if the person is liable to tax in that State in respect only of income from sources in that State.
3
A person, who in relation to any income, is a partnership, an estate of a deceased individual, or a trust (other than a partnership, an estate of a deceased individual, or a trust the income of which is exempt from taxation under the law of a Contracting State relating to its tax) shall not be treated as a resident of a Contracting State except to the extent that the income is subject to tax in that State as the income of a resident of that State, either in the hands of that person or in the hands of a partner or beneficiary, or, if that income is exempt from tax in that State, it is so exempt solely because it is subject to tax in the other State.
4
Where by reason of the preceding provisions of this Article an individual is a resident of both Contracting States, then the status of the person shall be determined in accordance with the following rules:
(a) the person shall be deemed to be a resident only of the Contracting State in which a permanent home is available to the person;
(b) if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident only of the Contracting State with which the person's economic and personal relations are closer. For the purpose of this subparagraph, an individual's citizenship or nationality of one of the Contracting States shall be a factor in determining the degree of the individual's personal and economic relations with that Contracting State.
5
Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident only of the State in which its place of effective management is situated.
ARTICLE 5 Permanent establishment
1
For the purposes of this Agreement, the term "permanent establishment" means a fixed place of business through which the business of an enterprise is wholly or partly carried on.
2
The term "permanent establishment" includes:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources; and
(g) an agricultural, pastoral or forestry property.
3
An enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if it has a building site or construction or installation project in that State, or a supervisory or consultancy activity connected therewith, which lasts more than 6 months.
4
An enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if:
(a) heavy equipment is being used in that State by, for or under contract with the enterprise; or
(b) a person manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
5
An enterprise shall not be deemed to have a permanent establishment merely by reason of:
(a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise; or
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery; or
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; or
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise, or for collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of advertising, supplying information, or scientific research or for similar activities which have a preparatory or auxiliary character for the enterprise; or
(f) the maintenance in Mexico of a representative office of a bank where the activities of the representative office are limited by the law of Mexico to activities which are of a preparatory or auxiliary nature.
6
A person acting in a Contracting State on behalf of an enterprise of the other Contracting State - other than an agent of an independent status to whom paragraph 7 applies - shall be deemed to be a permanent establishment of that enterprise in the firstmentioned State if the person has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, in respect of any activities which that person undertakes for the enterprise, unless the activities of such person are limited to those mentioned in paragraph 5 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.
7
An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that other State through a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business and that in their commercial or financial relations with the enterprise, conditions are not made or imposed that differ from those generally agreed to by independent agents.
8
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
9
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph 6 of Article 11 and paragraph 6 of Article 12 of this Agreement whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of one of the Contracting States, has a permanent establishment in a Contracting State.
ARTICLE 6 Income from immovable (real) property
1
Income from immovable (real) property may be taxed in the Contracting State in which the immovable (real) property is situated.
2
In this Article, the term "immovable (real) property":
(a) in the case of Mexico, means immovable property and has the meaning which it has under the law of Mexico, and shall also include:
(i) property accessory to immovable property;
(ii) livestock and equipment used in agriculture and forestry;
(iii) rights to which the provisions of general law respecting landed property apply;
(iv) usufruct of immovable property; and
(v) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources.
(b) in the case of Australia, means real property according to the law of Australia, and shall also include:
(i) a lease of land and any other interest in or over land, whether improved or not, including a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine those deposits or resources; and
(ii) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources.
3
Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, mineral, oil or gas deposits, quarries or natural resources, as the case may be, are situated or where the exploration may take place.
4
The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of immovable (real) property.
5
The provisions of paragraphs 1, 3 and 4 shall also apply to income from immovable (real) property of an enterprise and to income from immovable (real) property used for the performance of independent personal services.
ARTICLE 7 Business profits
1
The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated in that other State. If the enterprise carries on business in that manner, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to:
(a) that permanent establishment; or
(b) sales in that other State of goods or merchandise of the same or similar kind as the goods or merchandise sold through that permanent establishment. However, the profits derived from the sales described in this subparagraph (b) shall not be taxable in the other State if the enterprise demonstrates that such sales have been carried out for reasons other than obtaining a benefit under this Agreement.
2
Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated in that other State, there shall in each Contracting State be attributed to that permanent establishment the profits which it might reasonably be expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
3
In determining the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere. No such deductions shall be allowed in respect of such amounts, if any, paid (otherwise than towards reimbursement of actual expenses) by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, by way of commission, for specific services performed or for management, or, except in the case of a bank, by way of interest on money lent to the permanent establishment.
4
No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5
Where profits include items of income or gains which are dealt with separately in other Articles of this Agreement, then the provisions of those Articles shall not be affected by the provisions of this Article.
6
Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits from insurance with non-residents provided that if the relevant law in force in either Contracting State at the date of signature of this Agreement is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate. For the purposes of the application of this paragraph, an insurance enterprise of Australia shall, except in regard to reinsurance, be deemed to have a permanent establishment in Mexico if it collects premiums in Mexico or insures risks situated therein through a person other than an agent of an independent status to whom paragraph 7 of Article 5 applies.
ARTICLE 8 Ships and aircraft
1
Profits of an enterprise of a Contracting State derived from the operation of ships or aircraft shall be taxable only in that State.
2
Notwithstanding the provisions of paragraph 1, such profits may be taxed in the other Contracting State to the extent that they are profits derived directly or indirectly from ship or aircraft operations confined solely to places in that other State.
3
The profits to which the provisions of paragraphs 1 and 2 apply include profits from the operation of ships or aircraft derived through participation in a pool service or other profit sharing arrangement.
4
For thepurposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise which are shipped in a Contracting State and are discharged at a place in that State shall be treated as profits from ship or aircraft operations confined solely to places in that State.
ARTICLE 9 Associated enterprises
1
Where:
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State,and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which would operate or which might be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, have accrued or might have been expected to accrue to one of the enterprises but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2
Where, by virtue of the provisions of paragraph 1 of this Article or Item (4) of the Protocol, a Contracting State includes in the profits of an enterprise of that State, and taxes accordingly, profits on which an enterprise of the other Contracting State has been charged to tax in that other State and the profits so included are profits which would have accrued or which might be expected to have accrued to the enterprise of the firstmentioned State if the conditions made between the two enterprises had been those which would have operated or which might be expected to have operated between independent enterprises dealing wholly independently with one another, then that other State shall, in accordance with the provisions of Article 24, make an appropriate adjustment to the amount of tax charged in that State on those profits if it agrees with the adjustment made by the firstmentioned Contracting State. In determining such an adjustment, due regard shall be had to the other provisions of this Agreement and the competent authorities of the Contracting States shall if necessary consult each other.
3
The provisions of paragraph 2 shall not apply in the case of fraud.
ARTICLE 10 Dividends
1
Dividends paid by a company which is a resident of a Contracting State, being dividends to which a resident of the other Contracting State is beneficially entitled, may be taxed only in that other State.
2
However, those dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident, and according to the law of that State, but the tax so charged shall not exceed:
(a) nil per cent of the gross amount of so much of the dividends as are paid out of profits that have borne the normal rate of company tax, if the person beneficially entitled to those dividends is a company (other than a partnership) which holds directly at least 10 per cent of the voting power in the company paying the dividends; and
(b) 15 per cent of the gross amount of the dividends to the extent to which those dividends are not within paragraph (a),provided that if the relevant law in either Contracting State at the date of signature of this Agreement is varied otherwise than in minor respects so as not to affect its general character, the Contracting States shall consult each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
3
For the purposes of paragraph 2, profits have borne the normal rate of company tax:
(a) in Mexico, to the extent to which the dividends have been paid from the net profit account; and
(b) in Australia, to the extent to which the dividends have been "franked" in accordance with its law relating to tax.
4
The provisions of paragraph 1 and paragraph 2 shall not affect the taxation of the company in respect of the profits out of which the dividends are paid.
5
The term "dividends" in this Article means income from shares and other income assimilated to income from shares by the law, relating to tax, of the Contracting State of which the company making the distribution is a resident.
6
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
7
Where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company - being dividends to which a person who is not a resident of the other Contracting State is beneficially entitled - except insofar as the holding in respect of which such dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company's undistributed profits to a tax on the company's undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State.
ARTICLE 11 Interest
1
Interest arising in a Contracting State, being interest to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2
However, that interest may also be taxed in the Contracting State in which it arises and according to the law of that State, but the tax so charged shall not exceed:
(a) 10 per cent of the gross amount of the interest:
(i) if the person beneficially entitled is a bank or an insurance company; or
(ii) if derived from bonds and securities that are regularly and substantially traded on a recognized securities market; or
(iii) paid by banks except where subparagraphs (i) or (ii) apply; or
(iv) paid by the purchaser to the seller of machinery and equipment in connection with a sale on credit; and
(b) 15 per cent of the gross amount of the interest in all other cases.
3
Notwithstanding the provisions of paragraph 2, interest derived from the investment of official foreign exchange reserve assets by the Government of one of the Contracting States, its monetary institutions or a bank performing central banking functions in that State shall be exempt from tax in the other Contracting State.
4
The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, interest from any other form of indebtedness and all other income assimilated to income from money lent by the law, relating to tax, of the Contracting State in which the income arises.
5
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the interest, being a resident of a Contracting State, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the indebtedness in respect of which the interest is paid is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
6
Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment or fixed base, then the interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
7
Where, by reason of a special relationship between the payer and the person beneficially entitled to the interest, or between both of them and some other person, the amount of the interest paid exceeds, for whatever reason, the amount which would or might have been expected to have been agreed upon by the payer and the person so entitled in the absence of that relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the interest paid shall remain taxable according to the laws of each Contracting State, due regard being had to the other provisions of this Agreement.
8
The provisions of this Article shall not apply if the indebtedness in respect of which the interest is paid was created or assigned with the main purpose of taking advantage of this Article and not for bona fide commercial reasons. In that case the provisions of the domestic law of the Contracting State in which the interest arises shall apply.
ARTICLE 12 Royalties
1
Royalties arising in a Contracting State, being royalties to which a resident of the other Contracting State is beneficially entitled, may be taxed in that other State.
2
However, those royalties may also be taxed in the Contracting State in which they arise, and according to the law of that State, but the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
3
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; or
(b) the use of, or the right to use, any industrial, commercial or scientific equipment; or
(c) the supply of scientific, technical, industrial or commercial knowledge or information; or
(d) the supply of any assistance that is 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); or
(e) the use of, or the right to use:
(i) motion picture films; or
(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.
4
The term "royalties" also includes income, profits or gains derived from the sale, exchange or other disposition of any property or right described in this paragraph to the extent to which the amounts realised on such sale, exchange or other disposition are contingent on the productivity, use or further disposition of such property or right.
5
The provisions of paragraphs 1 and 2 shall not apply if the person beneficially entitled to the royalties, being a resident of a Contracting State, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated in that other State, or performs in that other State independent personal services from a fixed base situated in that other State, and the property or right in respect of which the royalties are paid or credited is effectively connected with that permanent establishment or fixed base. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
6
Royalties shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the royalties, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
7
Where, owing to a special relationship between the payer and the person beneficially entitled to the royalties, or between both of them and some other person, the amount of the royalties paid or credited exceeds, for whatever reason, the amount which would or might have been expected to have been agreed upon by the payer and the person so entitled in the absence of such relationship, the provisions of this Article shall apply only to the lastmentioned amount. In that case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Agreement.
8
The provisions of this Article shall not apply if the rights or property in respect of which the royalties are paid or credited were created or assigned with the main purpose of taking advantage of this Article and not for bona fide commercial reasons. In that case the provisions of the domestic law of the Contracting State in which the royalties arise shall apply.
ARTICLE 13 Alienation of property
1
Income, profits or gains derived by a resident of a Contracting State from the alienation of immovable (real) property situated in the other Contracting State may be taxed in that other State.
2
Income, profits or gains derived by a resident of a Contracting State from the alienation of any shares or other interests in a company, or of an interest of any kind in a partnership, trust or other entity, where the value of the assets of such entity, whether they are held directly or indirectly (including through one or more interposed entities, such as, for example, through a chain of companies), is principally attributable to real property situated in the other Contracting State, may be taxed in that other State.
3
Income, profits or gains from the alienation of property, other than immovable (real) property, that forms part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or pertains to a fixed base available in that other State to a resident of the firstmentioned State for the purpose of performing independent personal services, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise) or of that fixed base, may be taxed in that other State.
4
Income, profits or gains from the alienation of ships or aircraft operated in international traffic, or property other than immovable (real) property pertaining to the operation of such ships or aircraft, shall be taxable only in the Contracting State in which the enterprise alienating those ships, aircraft or property is a resident.
5
Nothing in this Agreement affects the application of a law of a Contracting State relating to the taxation of gains of a capital nature derived from the alienation of any property (including shares or other rights of a company) other than that to which any of the preceding paragraphs of this Article apply.
6
In this Article, the term "immovable (real) property" has the same meaning as it has in paragraph 2 of Article 6.
7
The situation of immovable (real) property shall be determined for the purposes of this Article in accordance with paragraph 3 of Article 6.
8
An individual who elects, under the taxation law of a Contracting State, to defer taxation on income, profits or gains relating to property which would otherwise be taxed in that State upon the individual ceasing to be a resident of that State for the purposes of its tax, shall, if the individual is a resident of the other Contracting State, be taxable on income, profits or gains from the subsequent alienation of that property only in that other Contracting State.
ARTICLE 14 Independent personal services
1
Income derived by an individual who is a resident of a Contracting State in respect of professional services or other activities of an independent character shall be taxable only in that State. However, if that individual:
(a) has a fixed base regularly available in the other Contracting State for the purpose of performing those activities; or
(b) is present in the other State for a period or periods exceeding in the aggregate 183 days in any twelve month period commencing or ending in the fiscal year or in the year of income concerned, as the case may be of that other State,the income may be taxed in that other State, but only so much of the income as is attributable to services performed from that fixed base or in that other State during such period or periods.
2
The term "professional services" includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities as well as in the exercise of the independent activities of physicians, lawyers, engineers, architects, dentists and accountants.
ARTICLE 15 Dependent personal services
1
Subject to the provisions of Articles 16, 18 and 19, salaries, wages and other similar remuneration derived by an individual who is a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
2
Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the firstmentioned State if:
(a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any twelve month period commencing or ending in the fiscal year or in the year of income concerned, as the case may be; and
(b) the remuneration is paid by, or on behalf of, an employer who is a resident of the firstmentioned State; and
(c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in that other State.
3
Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic by an enterprise of a Contracting State may be taxed in that State.
ARTICLE 16 Directors' fees
Directors' fees and other similar payments derived by a resident of a Contracting State in that person's capacity as a member of the board of directors and, in the case of Mexico, in that person's capacity as an "administrador" or a "comisario", of a company which is a resident of the other Contracting State may be taxed in that other State.ARTICLE 17 Entertainers and sportspersons
1
Notwithstanding the provisions of Articles 7, 14 and 15, income derived by entertainers (such as theatrical, motion picture, radio or television artistes and musicians) and sportspersons from their personal activities as such may be taxed in the Contracting State in which these activities are exercised. Income referred to in this paragraph shall include income derived from any personal activities performed in the other Contracting State by such persons relating to their reputation as entertainers or sportspersons.
2
Where income in respect of the personal activities of an entertainer or a sportsperson as such accrues not to that entertainer or sportsperson but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer or sportsperson are exercised.
ARTICLE 18 Pensions and annuities
1
Pensions (including government pensions) and annuities paid to a resident of a Contracting State shall be taxable only in that State.
2
The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
3
Any alimony or other like maintenance payment arising in a Contracting State and paid to a resident of the other Contracting State shall be taxable only in the firstmentioned State.
ARTICLE 19 Government service
1
Salaries, wages and other similar remuneration, other than a pension or annuity, paid by a Contracting State or a political subdivision or local authority of that State to an individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a citizen or national of that State; or
(b) did not become a resident of that State solely for the purpose of rendering the services.
2
The provisions of paragraph 1 shall not apply to salaries, wages and other similar remuneration in respect of services rendered in connection with a business carried on by a Contracting State or a political subdivision or a local authority thereof. In that case the provisions of Articles 15 or 16, as the case may be, shall apply.
ARTICLE 20 Students
Payments received by a student who is or was immediately before visiting a Contracting State a resident of the other Contracting State and who is present in the firstmentioned State solely for the purpose of the student's education, shall be exempt from tax in the firstmentioned State, provided that such payments were made to the student by persons residing outside that firstmentioned State for the purposes of the student's maintenance or education.ARTICLE 21 Other income
1
Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Agreement shall be taxable only in that State.
2
The provisions of paragraph 1 shall not apply to income, other than income from immovable (real) property as defined in paragraph 2 of Article 6, derived by a resident of a Contracting State where that income is effectively connected with a permanent establishment or fixed base situated in the other Contracting State. In that case the provisions of Article 7 or Article 14, as the case may be, shall apply.
3
Notwithstanding the provisions of paragraphs 1 and 2, items of income of a resident of a Contracting State not dealt with in the foregoing Articles of this Agreement from sources in the other Contracting State may also be taxed in the other Contracting State.
ARTICLE 22 Source of income
1
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8 and 10 to 19, may be taxed in the other Contracting State shall for the purposes of the law of that other Contracting State relating to its tax be deemed to be income from sources in that other Contracting State.
2
Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8 and 10 to 19, may be taxed in the other Contracting State shall for the purposes of Article 23 and of the law of the firstmentioned State relating to its tax be deemed to be income from sources in the other Contracting State.
ARTICLE 23 Methods of elimination of double taxation
1
In accordance with the provisions and subject to the limitations of the laws of Mexico, as may be amended from time to time without changing the general principle hereof, Mexico shall allow its residents as a credit against Mexican tax:
(a) Australian tax paid on income arising in Australia, in an amount not exceeding the tax payable in Mexico on such income; and
(b) in the case of a company owning at least 10 per cent of the capital of a company which is a resident of Australia and from which the firstmentioned company receives dividends, Australian tax paid by the distributing company with respect to the profits out of which the dividends are paid.
2
Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article):
(a) Mexican tax paid under the law of Mexico and in accordance with this Agreement, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Mexico shall be allowed as a credit against Australian tax payable in respect of that income; and
(b) where a company which is a resident of Mexico and is not a resident of Australia for the purposes of Australian tax pays a dividend to a company which is a resident of Australia and which controls directly or indirectly not less than 10 per cent of the voting power of the firstmentioned company, the credit referred to in subparagraph (a) shall include the Mexican tax paid by that firstmentioned company in respect of that portion of its profits out of which the dividend is paid.
ARTICLE 24 Mutual agreement procedure
1
Where a person considers that the actions of one or both of the Contracting States result or will result for the person in taxation not in accordance with the provisions of this Agreement, the person may, irrespective of the remedies provided by the domestic law of those States concerning taxes to which this Agreement applies, present a case to the competent authority of the Contracting State of which the person is a resident. The case must be presented within 3 years from the first notification of the action resulting in taxation not in accordance with this Agreement.
2
The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with this Agreement, provided that in the case of Mexico the competent authority is notified of the case within four and a half years from the due date or the date of filing the return in Mexico, whichever is later. The solution so reached shall be implemented:
(a) in the case of Mexico, within ten years from the due date or the date of filing of the return in Mexico, whichever is later, or a longer period if permitted under the domestic law of Mexico;
(b) in the case of Australia, notwithstanding any time limits in the law relating to its tax.
3
The competent authorities of the Contracting States shall jointly endeavour to resolve any difficulties or doubts arising as to the interpretation or application of this Agreement. They may also consult together regarding cases not provided for in this Agreement.
4
The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Agreement.
5
For the purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of this Agreement may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph 3 of this Article or failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States.
ARTICLE 25 Exchange of information
1
The competent authorities of the Contracting States shall exchange such information as is necessary for carrying out the provisions of this Agreement or of the domestic law of the Contracting States concerning taxes to which this Agreement applies insofar as the taxation under that law is not contrary to this Agreement. The exchange of information is not restricted by Article 1. Any information received by aContracting State shall be treated as secret in the same manner as information obtained under the domestic law of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, or the determination of appeals in relation to, the taxes to which this Agreement applies. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
2
In no case shall the provisions of paragraph 1 be construed so as to impose on a Contracting State the obligation to:
(a) carry out administrative measures at variance with the law or the administrative practice of that or of the other Contracting State; or
(b) supply information which is not obtainable under the law or in the normal course of the administration of that or of the other Contracting State; or
(c) supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or to supply information the disclosure of which would be contrary to public policy.
ARTICLE 26 Members of diplomatic missions and consular posts
Nothing in this Agreement shall affect the fiscal privileges of members of diplomatic missions and consular posts under the general rules of international law or under the provisions of special international agreements.ARTICLE 27 Entry into force
Both Contracting States shall notify each other in writing through the diplomatic channel of the completion of their respective statutory and constitutional procedures required for the entry into force of this Agreement. This Agreement shall enter into force on the date of the last notification, and thereupon this Agreement shall have effect:
(a) in respect of taxes imposed in accordance with Articles 10 (Dividends), 11 (Interest), and 12 (Royalties), for amounts paid or credited on or after the first day of the second month next following the date on which this Agreement enters into force if the Agreement enters into force prior to 1 July of that year; otherwise, on 1 January of the year following the year this Agreement enters into force.
(b) in respect of other taxes:
(i) in Mexico, on or after 1 July in the calendar year next following that in which this Agreement enters into force;
(ii) in Australia, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which this Agreement enters into force.ARTICLE 28 Termination
This Agreement shall continue in effect indefinitely, but either of the Contracting States may, on or before 30 June in any calendar year beginning after the expiration of 5 years from the date of its entry into force, give to the other Contracting State through the diplomatic channel written notice of termination and, in that event, this Agreement shall cease to be effective:
(a) in Mexico:
on or after 1 July in the calendar year next following that in which the notice is given;
(b) in Australia:
(i) in respect of withholding tax on income that is derived by a non-resident, in relation to income derived on or after 1 July in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given.IN WITNESS WHEREOF the undersigned, duly authorised thereto by their respective Governments, have signed this Agreement.
DONE in duplicate at Mexico City this ninth day of September 2002, in the Spanish and English languages, both texts being equally authentic.
PROTOCOL TO THE AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE UNITED MEXICAN STATES FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
FOR THE GOVERNMENT OF AUSTRALIA:
PETER COSTELLO
Treasurer
[Signatures omitted]FOR THE GOVERNMENT OF THE UNITED MEXICAN STATES:
FRANCISCO GIL DIAZ
Minister for Finance and Public Credit
(1)
With reference to paragraph 1 of Article 4,The term "resident" also includes a Contracting State or a political subdivision or local authority thereof.
(2)
With reference to Article 7,It is understood that income or profits attributable to a permanent establishment during its existence will be taxed in the Contracting State in which the permanent establishment is situated even if the payments are deferred until the permanent establishment has ceased to exist.
It is further understood that where:
(a) a resident of a Contracting State is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other State,the enterprise carried onby the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated in that other State and that share of business profits shall be attributed to that permanent establishment.
It is further understood that nothing in Article 7 shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that state is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
(3)
With reference to paragraph 1 of Article 8,Profits referred to in paragraph 1 shall not include profits from the provision of accommodation or transportation other than from the operation of ships or aircraft in international traffic.
(4)
With reference to Article 9,It is understood that nothing in Article 9 shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to an enterprise, provided that that law shall be applied, so far as it is practicable to do so, consistently with the principles of this Article.
(5)
With reference to paragraph 2 of Article 10,It is understood that nothing in this paragraph affects the rate of tax that applies to the company paying the dividends in the Contracting State of which the company is a resident by reason of distribution of such dividends.
(6)
With reference to paragraph 5 of Article 10,It is understood that an issue of bonus shares is included in the term "dividends".
(7)
With reference to paragraph 2 of Article 11,
(a) The term "recognized securities market" means:
(i) in the case of Mexico, stock exchanges duly authorized under the terms of the Stock Market Law (Ley del Mercado de Valores) of 2 January, 1975;
(ii) in the case of Australia, a stock exchange authorized under the laws of Australia; and
(iii) any other stock exchange agreed upon by the competent authorities of the Contracting States.
(b) The provisions of this paragraph shall not apply to interest derived from back-to-back loans. In such case, the interest shall be taxable in accordance with the domestic law of the State in which it arises.
(8)
With reference to paragraph 6 of Article 11 and paragraph 6 of Article 12,It is understood that where a loan has been contracted by an enterprise of a Contracting State and a part only of that loan is attributed to a permanent establishment or fixed base of that enterprise in the other Contracting State, or where a contract under which royalties are paid has been concluded by the enterprise and a part only of such contract is attributed to such permanent establishment or fixed base, then only that part of the loan or contract is to be considered as an indebtedness or a contract connected with that permanent establishment or fixed base.
(9)
With reference to Article 12,It is understood that the definition of "royalties" includes 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 reception of, or the right to receive, visual images or sounds, or both, transmitted to the public by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; and
(b) the use in connection with television broadcasting or radio broadcasting, or the right to use in connection with television broadcasting or radio broadcasting, visual images or sounds, or both, transmitted by:
(i) satellite; or
(ii) cable, optic fibre or similar technology; and
(c) the use of, or the right to use, some or all of the part of the spectrum specified in a spectrum licence.
(10)
With reference to Article 14,Article 14 shall also apply to income derived by a company which is a resident of Australia from the furnishing of personal services through a fixed base in Mexico in accordance with subparagraph (a) of paragraph 1. In that case, the company may compute the tax on the income from such services on a net basis as if that income were attributable to a permanent establishment in Mexico.
(11)
In general,
(a) It is understood that the asset tax imposed by Mexico shall not be applied to residents of Australia that are not subject to tax under Articles 5 and 7 of the Agreement, except for assets referred to in paragraphs 3 and 4 of Article 12 that are furnished by such residents to a resident of Mexico. In the case of assets referred to in paragraphs 3 and 4 of Article 12, Mexico shall grant a credit against the tax on such assets in an amount equal to the income tax that would have been imposed under the Mexican Income Tax Law on the royalties paid instead of the rate provided in Article 12.
(b) If, in an Agreement for the avoidance of double taxation that may subsequently be made between Australia and a third State, there is included a Non-discrimination Article, Australia shall immediately inform Mexico in writing through the diplomatic channel and shall enter into negotiations with Mexico in order to provide the same treatment for Mexico as may be provided for the third State.
(c) If, an Agreement for the avoidance of double taxation that may subsequently be made between Australia and a third State, establishes that the Exchange of Information Article may be used for purposes of value added taxes imposed by the Contracting States, such clause automatically shall apply for the purposes of the Agreement.IN WITNESS WHEREOF the undersigned, being duly authorised thereto by their respective Governments have signed this Protocol.
DONE in duplicate at Mexico City this ninth day of September 2002, in the Spanish and English languages, both texts being equally authentic.
FOR THE GOVERNMENT OF AUSTRALIA:
PETER COSTELLO
Treasurer
[Signatures omitted]FOR THE GOVERNMENT OF THE UNITED MEXICAN STATES:
FRANCISCO GIL DIAZ
Minister for Finance and Public Credit
Sch 47 inserted by No 123 of 2003.
(Repealed by No 45 of 2011)
History
Sch 48 repealed by No 45 of 2011, s 3 and Sch 1 item 69, to remove the text of the British Virgin Islands Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 48 formerly read:
Schedule 48 - The British Virgin Islands Agreement
Note: See section 3.
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE BRITISH VIRGIN ISLANDS FOR THE ALLOCATION OF TAXING RIGHTS WITH RESPECT TO CERTAIN INCOME OF INDIVIDUALS
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 British Virgin Islands, such taxes on income or profits as imposed by law (hereinafter referred to as "British Virgin 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; andand includes any area adjacent to the territorial limits of Australia (including only 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 and the seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) the term "British Virgin Islands" means the territory of the Virgin Islands as referred to in the Virgin Islands Constitution Order 2007;
(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 British Virgin Islands, the Financial Secretary or a person or authority designated by the Financial Secretary in writing;
(d) the term "Contracting Party" means Australia or the British Virgin Islands, as the context requires;
(e) the term "national" means
(i) in relation to Australia, any person who is an Australian citizen;
(ii) in relation to the British Virgin Islands, any person who belongs to the British Virgin Islands or is a permanent resident of the British Virgin Islands;
(f) the term "person", wherever used, refers to an individual;
(g) the term "tax" means Australian tax or British Virgin Islands tax as the context requires.
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 British Virgin Islands, a person who is liable to pay tax under British Virgin Islands law.
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 Contracting 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 Contracting 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 of which the individual is a national;
(c) if the individual is a national of both Contracting Parties or of neither of them, the competent authorities of the Contracting Parties shall endeavour to resolve the question by mutual agreement.
ARTICLE 5 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 Contracting Party and the individual is a resident of that Contracting Party who:
(i) is a national of that Contracting Party; or
(ii) did not become a resident of that Contracting 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 Contracting Party.
ARTICLE 6 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 Contracting Party solely for the purpose of their education or training, receives for the purpose of their maintenance, education or training shall not be taxed in that Contracting Party, provided such payments arise from sources outside that Contracting Party.ARTICLE 7 Exchange of information
The competent authorities of the Contracting Parties shall exchange such information as is foreseeably 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 Relating 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 8 Entry into force
The Contracting Parties shall notify each other, in writing, through the appropriate 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 for the Exchange of Information Relating 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 British Virgin Islands tax, for any year of income beginning on or after 1 January in the calendar year next following the date on which this Agreement enters into force.ARTICLE 9 Termination
1
This Agreement shall continue in force indefinitely, but either of the Contracting Parties may, give to the other Contracting Party through the appropriate channel 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;
(b) in respect of British Virgin Islands tax, 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.
3
Notwithstanding the provisions of paragraph 1 or 2, this Agreement shall, on receipt through the appropriate channel of written notice of termination of the Agreement for the Exchange of Information Relating 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 six months after the date of receipt of such notice.
IN WITNESS WHEREOF the undersigned, being duly authorised thereto by their respective Governments, have signed this Agreement.
DONE at London, this 27th day of October, 2008 in the English language.
FOR THE GOVERNMENT OF AUSTRALIA: FOR THE GOVERNMENT OF BRITISH VIRGIN ISLANDS:
Sch 48 inserted by No 105 of 2009, s 3 and Sch 1 item 4, effective 8 October 2009, however see Art 8 about entry into force.
(Repealed by No 45 of 2011)
History
Sch 49 repealed by No 45 of 2011, s 3 and Sch 1 item 69, to remove the text of the Isle of Man Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 49 formerly read:
Schedule 49 - The Isle of Man Agreement
Note: See section 3.
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE ISLE OF MAN 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
ARTICLE 1 Persons covered
This Agreement shall apply to persons who are residents of one or both of the 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 Isle of Man, taxes on income or profits;
(hereinafter referred to as "Manx 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 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 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; andand 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 seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) 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 Isle of Man, the Assessor of Income Tax or an authorised delegate;
(c) the term "Isle of Man" means the island of the Isle of Man;
(d) the term "Party" means Australia or Isle of Man, as the context requires;
(e) the term "national", in relation to a Party, means any individual possessing the nationality or citizenship of that Party;
(f) the term "person" includes an individual, a company and any other body of persons;
(g) the term "tax" means Australian tax or Manx tax, as the context requires; and
(h) the term "transfer pricing adjustment" means an adjustment made by the competent authority of a Party to the profits of an enterprise as a result of applying the domestic law concerning taxes referred to in Article 2 of that Party regarding transfer pricing.
2
As regards the application of this Agreement at any time by a 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 Party, for the purposes of the taxes to which this Agreement applies, with any meaning under the applicable tax laws of that Party prevailing over a meaning given to the term under other laws of that Party.
ARTICLE 4 Resident
1
For the purposes of this Agreement, the term "resident of a 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 Isle of Man, a person who is a resident for the purposes of Manx tax.
2
A person is not a resident of a Party for the purposes of this Agreement if the person is liable to tax in that Party in respect only of income from sources in that 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 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 Party with which the individual's personal and economic relations are closer (centre of vital interests);
(b) if the 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 Party of which the individual is a national;
(c) if the individual is a national of both Parties or of neither of them, the competent authorities of the Parties shall endeavour to resolve 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 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 Party shall be taxable only in that Party. However, pensions and retirement annuities arising in a Party may be taxed in that Party where such income is not subject to tax in the other 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 Isle of Man, an annuity payment within the meaning of the taxation laws of the Isle of Man; 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 Party or a political subdivision or a local authority thereof to an individual in respect of services rendered to that Party or subdivision or authority shall be taxable only in that Party.
(b) However, such salaries, wages and other similar remuneration shall be taxable only in the other Party if the services are rendered in that Party and the individual is a resident of that Party who:
(i) is a national of that 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 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 Party a resident of the other 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 in 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 Party considers the actions of the other 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 three 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 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 Parties shall exchange such information as is foreseeably 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 Parties (whether or not this Agreement, in whole or in part, forms part of the domestic law of either Party).ARTICLE 10 Entry into force
The Parties shall notify each other, in writing, through the appropriate 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 for the Exchange of Information with Respect to Taxes as in force between the 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 that in which this Agreement enters into force; and
(b) in respect of the Isle of Man, for any year of income beginning on or after 5 April in the calendar year next following that in which this Agreement enters into force.ARTICLE 11 Termination
1
This Agreement shall continue in effect indefinitely, but either of the Parties may give to the other Party through the appropriate channel 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;
(b) in respect of Manx tax, for any year of income beginning on or after 5 April in the calendar year next 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 appropriate channel of written notice of termination of the Agreement for the Exchange of Information with Respect to Taxes between the 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, being duly authorised thereto by their respective Governments, have signed this Agreement.
DONE at LONDON, UNITED KINGDOM, this 29th day of JANUARY, 2009, in duplicate in the English language.
FOR THE GOVERNMENT OF AUSTRALIA: FOR THE GOVERNMENT OF THE ISLE OF MAN:
Sch 49 inserted by No 105 of 2009, s 3 and Sch 1 item 4, effective 8 October 2009, however see Art 10 about entry into force.
(Repealed by No 45 of 2011)
History
Sch 50 repealed by No 45 of 2011, s 3 and Sch 1 item 69, to remove the text of the Jersey Agreement from this Act, effective 27 June 2011. For transitional provisions see note under s 3(1). Sch 50 formerly read:
Schedule 50 - The Jersey Agreement
Note: See section 3.
AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF JERSEY 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
ARTICLE 1 PERSONS COVERED
This Agreement shall apply to persons who are residents of one or both of the 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 Jersey the income tax; (hereinafter referred to as "Jersey 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 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 Party.
ARTICLE 3 DEFINITIONS
1
For the purposes of this Agreement, unless the context otherwise requires:
(a) "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; andand 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 seabed and subsoil of the continental shelf;
(vi) the Coral Sea Islands Territory,
(b) "Jersey" means the Bailiwick of Jersey, including its territorial sea;
(c) "competent authority" means, in the case of Australia, the Commissioner of Taxation or an authorised representative of the Commissioner and, in the case of Jersey, the Treasury and Resources Minister or an authorised representative of the Minister;
(d) "Party" means Australia or Jersey, as the context requires;
(e) "national", in relation to a Party, means any individual possessing the nationality or citizenship of that Party;
(f) "person" includes an individual, a company and any other body of persons;
(g) "tax" means Australian tax or Jersey tax, as the context requires; and
(h) "transfer pricing adjustment" means an adjustment made by the competent authority of a Party to the profits of an enterprise as a result of applying the domestic law concerning taxes referred to in Article 2 of that Party regarding transfer pricing.
2
As regards the application of this Agreement at any time by a 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 Party, for the purposes of the taxes to which this Agreement applies, with any meaning under the applicable tax laws of that Party prevailing over a meaning given to the term under other laws of that Party.
ARTICLE 4 RESIDENT
1
For the purposes of this Agreement, the term "resident of a 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 Jersey, a person who is a resident of Jersey for the purposes of Jersey tax.
2
A person is not a resident of a Party for the purposes of this Agreement if the person is liable to tax in that Party in respect only of income from sources in that 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 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 Party with which the individual's personal and economic relations are closer (centre of vital interests);
(b) if the 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 Party of which the individual is a national;
(c) if the individual is a national of both Parties or of neither of them, the competent authorities of the Parties shall endeavour to resolve 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 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 Party shall be taxable only in that Party. However, pensions and retirement annuities arising in a Party may be taxed in that Party where such income is not subject to tax in the other 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 Jersey, a retirement annuity contract approved by the Comptroller of Income Tax in accordance with the provisions of the taxation laws of Jersey; 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 Party or a political subdivision or a local authority thereof to an individual in respect of services rendered to that Party or subdivision or authority shall be taxable only in that Party.
(b) However, such salaries, wages and other similar remuneration shall be taxable only in the other 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 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 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 Party a resident of the other 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 in 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 Party considers the actions of the other 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 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 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 for the Exchange of Information with Respect to Taxes concluded by the Parties. (whether or not this Agreement, in whole or in part, forms part of the domestic law of either Party).ARTICLE 10 ENTRY INTO FORCE
The Parties shall notify each other, in writing, through the appropriate 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 for the Exchange of Information with Respect to Taxes is in force between the 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 Jersey tax, for any year of income beginning on or after 1 January in the calendar year next 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 Parties may give to the other 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;
(b) in respect of Jersey tax, in the year of income beginning on or after 1 January in the calendar year next following that in which the notice of termination isgiven.
3
Notwithstanding the provisions of paragraph 1 or 2, this Agreement shall, on receipt through appropriate channels of written notice of termination of the Agreement for the Exchange of Information with Respect to Taxes between the Parties, terminate and cease to be effective on the first day of the month following the expiration of a period of 3 months after the date of receipt of such notice.
IN WITNESS WHEREOF the undersigned, being duly authorised by their respective Governments, have signed this Agreement.
DONE at London, this tenth day of June, 2009, in duplicate in the English language.
FOR THE GOVERNMENT OF
AUSTRALIA:FOR THE GOVERNMENT OF
JERSEY:H E John Dauth LVO Senator Philip Ozouf High Commissioner Deputy Chief Minister
for Treasury and Resources
Sch 50 inserted by No 13 of 2010, s 3 and Sch 1 item 20, effective 11 March 2010. The Agreement entered into force 15 April 2010 (see Art 10 for rules about entry into force).