Sch 5A repealed by No 45 of 2011, s 3 and Sch 1 item 67, to remove the text of the Protocol to Singapore Agreement from this Act, effective 27 June 2011.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):

" In any such case, the provisions of Article 5 shall apply. "

; and

(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:

" (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. "

; and

(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 AUSTRALIA

JOSEPH 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.