Income Tax Assessment Act 1936

PART III - LIABILITY TO TAXATION  

Division 1 - General  

SECTION 23AA   INCOME OF PERSONS CONNECTED WITH CERTAIN PROJECTS OF UNITED STATES GOVERNMENT  

23AA(1)    

In this section, unless the contrary intention appears:

approved project
means the establishment, maintenance or operation of the North West Cape naval communication station, of the Joint Defence Space Research Facility, of the Sparta project, of the Joint Defence Space Communications Station or of a Force Posture Initiative.

Australia
(Repealed by No 2 of 2015)

civilian accompanying the United States Forces
means a person (not being a member of the United States Forces, an Australian citizen or a person ordinarily resident in Australia) who:

(a) is an employee:

(i) of the United States Forces; or

(ii) of, or of a body conducting, a club or other facility established for the benefit or welfare of members of the United States Forces or of persons accompanying those Forces and which is recognized by the Government of the United States of America as a non-appropriated fund activity; or

(b) is serving with an organization that, with the approval of the Government of the Commonwealth, accompanies the United States Forces in Australia.

dependant
, in relation to a person, means:

(a) the spouse of that person; or

(b) a relative, other than the spouse, of that person who is wholly or mainly dependent for support on that person;

but, in the case of a person who, immediately before becoming such a spouse or relative, was ordinarily resident in Australia, does not include that person so long as that person continues to be ordinarily resident in Australia.

Force Posture Agreement
means the Force Posture Agreement between the Government of Australia and the Government of the United States of America done at Sydney on 12 August 2014, as amended and in force for Australia from time to time.

Note:

The Treaty could in 2014 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

Force Posture Initiative
has the same meaning as in the Force Posture Agreement.

Note:

As well as some announced initiatives, this includes future initiatives that Australia and the United States mutually decide to be Force Posture Initiatives for the purposes of that Agreement.

foreign contractor
means a person who is a party to a prescribed contract and is not:

(a) a company incorporated in Australia;

(b) an Australian citizen; or

(c) a person, other than a company, who is ordinarily resident in Australia.

foreign employee
means a person who:

(a) is an employee of a foreign contractor; or

(b) is a director of a company that is a foreign contractor;

and is not an Australian citizen or ordinarily resident in Australia.

prescribed contract
means:

(a) a contract to which the Government of the United States of America is a party in connexion with an approved project; or

(b) a contract made for purposes connected with the performance of a contract referred to in paragraph (a).

prescribed purposes
means:

(a) in relation to a foreign contractor or foreign employee - purposes relating to the performance of a prescribed contract;

(aa) in relation to a United States employee - purposes relating to an approved project; and

(b) in relation to a member of the United States Forces or a civilian accompanying the United States Forces - purposes relating to the carrying on of activities agreed upon between the Government of the Commonwealth and the Government of the United States of America.

the Joint Defence Space Communications Station
means the undertaking the establishment of which is provided for by an agreement dated 10 November 1969 between the Government of the Commonwealth and the Government of the United States of America.

the Joint Defence Space Research Facility
means the undertaking the establishment of which is provided for by an agreement dated 9 December 1966 between the Government of the Commonwealth and the Government of the United States of America.

the North West Cape naval communication station
means the naval communication station the establishment of which is provided for by the agreement approved by the United States Naval Communication Station Agreement Act 1963 .

the Sparta project
means the undertaking the establishment of which is provided for by a memorandum of arrangement dated 30 March 1966 between the Government of the Commonwealth, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America.

the United States Forces
means the armed forces of the Government of the United States of America.

United States employee
means a person who is employed by the Government of the United States of America and is not:

(a) a member of the United States Forces;

(b) a civilian accompanying the United States Forces;

(c) an Australian citizen; or

(d) a person ordinarily resident in Australia.

23AA(2)    

For the purposes of this section, a foreign contractor, foreign employee or United States employee who is in Australia, or is carrying on business in Australia, solely for prescribed purposes does not cease to be in Australia solely for those purposes, or to be carrying on business in Australia solely for those purposes, by reason of anything undertaken or done by him or her in connexion with an undertaking in Australia of the Government of the United States of America, other than an approved project, agreed upon between the Government of the Commonwealth and the Government of the United States of America.

23AA(3)    

Where a person:

(a) has been in Australia, or has carried on business in Australia, solely for prescribed purposes during a period when the person was a foreign contractor or foreign employee;

(b) has been in Australia solely for prescribed purposes during a period when the person was a member of the United States Forces, a civilian accompanying the United States Forces or a United States employee; or

(c) has been in Australia during a period when the person was a dependant of such a contractor, employee, member or civilian who was in Australia solely for prescribed purposes;

that person shall, for the purposes of the provisions of this Act other than Subdivision A of Division 17, be deemed not to have been a resident of Australia during that period, and the presence of that person in Australia during that period shall be disregarded in determining, for the purposes of those provisions, whether the person was a resident of Australia at any other time.

23AA(4)    

Subsection (3) does not apply in respect of, or of a part of, a period when a person was, or was a dependant of, a foreign contractor, a foreign employee, a civilian accompanying the United States Forces or a United States employee if the person:

(a) being a company - was not a domestic corporation for the purposes of the law of the United States of America relating to income tax; or

(b) not being a company - was not a resident of the United States of America for the purposes of that law or a citizen of the United States of America;

during that period or that part of that period, as the case may be.

23AA(5)    
Where:

(a) a foreign contractor or a foreign employee has derived income wholly and exclusively from, or from employment in connexion with, the performance in Australia of a prescribed contract;

(b) the income is not exempt from income tax imposed by Chapter One of Subtitle A of the Internal Revenue Code of 1986 of the United States of America; and

(c) the foreign contractor or foreign employee was, at the time the income was derived, in Australia, or carrying on business in Australia, solely for prescribed purposes;

the income shall, for the purposes of this Act, be deemed to have been derived from sources out of Australia.

23AA(6)    
Where:

(a) a person has derived income in respect of service as a civilian accompanying the United States Forces or as a United States employee during a period when the person was in Australia solely for prescribed purposes; and

(b) the income is not exempt from income tax imposed by Chapter One of Subtitle A of the Internal Revenue Code of 1986 of the United States of America;

the income shall, for the purposes of this Act, be deemed to have been derived from sources out of Australia.