Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) In this Act, unless the contrary intention appears:
(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
(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.
(a) income tax imposed as such by an Act; or
(b) fringe benefits tax imposed by the Fringe Benefits Tax Act 1986 .
"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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
the 1997 Finnish protocol means the Protocol, signed at Canberra on 5 November 1997, between Australia and Finland amending the 1984 Finnish agreement.
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.
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.
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.
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.
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.
the 2008 Japanese 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.
"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.
"the Assessment Act" means the Income Tax Assessment Act 1936 or the Income Tax Assessment Act 1997 .
"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.
"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 Belgian protocol.
"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.
"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 .
"the Canadian convention" means 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 convention a copy of which in the English language is set out in Schedule 3, as amended by the Canadian protocol.
"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.
"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.
"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.
"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.
"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.
"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.
"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.
"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.
"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.
"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.
"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.
"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.
"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.
"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.
"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.
"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.
"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.
"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.
"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.
"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.
"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.
"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.
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.
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.
"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.
"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.
"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.
"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.
"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.
"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 respect to taxes on income that was signed at Mont Tremblant on 1 October 1957.
"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.
"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.
"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.
"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.
"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.
"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 Singapore protocol.
"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.
"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.
"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.
"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.
"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.
"the 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, being the agreement a copy of which in the English language is set out in Schedule 31.
"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.
"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.
"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.
"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.
"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.
"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.
"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.
"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.
(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.
(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) 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.
(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.
(7) For the purposes of this Act, the texts in 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.
(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 to an area adjacent to Australia as specified in Schedule 1 to the Offshore Petroleum and Greenhouse Gas Storage Act 2006 .
(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 Assessment Act.
(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 .
(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.
(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.
(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.
(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.
"permanent establishment" in relation to an agreement, has the same meaning as in the agreement.