Bills Digest No. 70, 2012–13

6 February 2013

International Tax Agreements Amendment Bill 2012

Kali Sanyal, Economics Section

Jonathan Chowns, Law and Bills Digest Section

Date introduced: 29 November 2012

House: House of Representatives

Portfolio: Treasury

Commencement: The Act commences on Royal Assent

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The International Tax Agreements Amendment Bill 2012 (the Bill) amends the International Tax Agreements Act 1953 (the Agreements Act) to give domestic legal effect to new bilateral taxation agreements with the Marshall Islands (the Marshall Islands agreement) and Mauritius (the Mauritius agreement) and to the protocol amending an existing taxation agreement with India (the Indian protocol).

Background

Indian Protocol

On 25 July 1991, the Governments of Australia and the Republic of India entered into an agreement for ‘the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income’ (the Indian Agreement).[1] The agreement is given legal effect in Australia by the International Tax Agreements Act (the Agreements Act).[2]

Such agreements address the situation where a taxpayer may be subject to taxation on the same income in two (or more) different countries. To take an example, country X taxes its citizens no matter where their income is sourced and no matter where the citizen resides. Country Y taxes its residents on their domestically sourced income. A citizen of country X residing and earning income in country Y could be liable to taxation in both countries.  Where this is regarded as unreasonable, double taxation agreements allocate the taxing rights in relation to that income. Also, double taxation agreements commonly aim to prevent income tax evasion by encouraging cooperation and the sharing of information between contracting parties, and by ensuring that the laws of Australia and the other states are enforced.

The Organisation for Economic Development and Cooperation (OECD), has been engaged in India to improve the quality of its taxation regime which has been characterised by tax avoidance and tax evasion, including for reasons of non-disclosure or concealment of income outside of the jurisdiction. According to a new study by Global Financial Integrity, a Washington-based research and advocacy group, the Indian economy suffered a loss of US$123 billion in illicit outflows of capital from the country between 2001 and 2010.[3] The Wall Street Journal describes this as ‘money that was illegally earned, transferred or used and stashed abroad.’[4]

However, the Indian taxation system has been undergoing reform since the opening up of the economy in 1991. Reform has so far been gradual and there are elements that still need to adjust to international norms.

The OECD has been very active in building capacity of tax administration in India, particularly in the fields of transfer pricing and international taxation. OECD’s engagement with India which started in the form of yearly training programmes in the late 1990s has now grown to a multi-faceted delivery of tax-technical and tax-policy dialogue events on regular basis.[5]

On 16 December 2011, Australia and India signed the Indian Protocol amending the Indian Agreement.[6] Amendments to Article 5 of the Agreement update the rules which determine when country A may tax the business profits of an enterprise of country B that is operating in country A. These new rules are expected to facilitate stronger economic co-operation between the countries. In addition, the Protocol amends three Articles preventing tax discrimination under tax laws (Article 24A), upgrades the framework to the international norm in relation to the exchange of taxpayer information (Article 26) and provides a new framework to provide mutual assistance in the collection of taxes (Article 26A).[7]

Mauritius and Marshall Islands Agreements

Both the Marshall Islands[8] and Mauritius[9] were once identified by the OECD as having the characteristics of tax havens.

What is a tax haven?

Income earned in tax havens does not have a special status in the laws of other countries such as Australia. Such income is generally assessable in the same way as other income.

There is no philosopher‘s stone that, through alchemy, transforms Australian or foreign source income derived by an Australian resident into non-taxable income in Australia by the mere transmission through, or concealment in, a tax haven.[10]

The features that give tax havens that status are principally their low tax rates and secrecy. Information about income earned in those countries simply does not come to the attention of taxing authorities in other countries unless it is volunteered.

Secrecy about income that might otherwise be assessable in other countries is typically dealt with through bi-lateral agreements for the sharing of tax information.  Australia has recently entered such Tax Information Exchange Agreements (TIEA) with the Marshall Islands[11] and Mauritius.[12]  To give legal effect to these agreements, no new legislation is required and these agreements are not the subject of this Bill.

Rather, this Bill gives legal effect to two other related agreements that Australia has signed with these two countries. On 12 May 2010, Australia signed a new ‘Allocation Of Taxing Rights’ agreement with the Marshall Islands[13] and, on 8 December 2010, with Mauritius.[14] These are of a similar nature to the better known ‘double tax agreements‘, an expression that tends to be used for agreements with major trading partners that have comparable tax systems.

These latter agreements do require legislation in order to have legal effect in Australia.

The allocation of taxing rights agreements are offered by Australia to these other countries as part of a package of benefits to encourage them to conclude a TIEA.[15] Although not directly the subject of this Bill, the TIEAs are mentioned in this digest in order to establish the context for the operation of the Allocation of Taxing Rights Agreements that are the subject of this Bill.

The agreements incorporated into the Agreements Act by this Bill set out some rules for determining which country will have taxing rights over certain income of a limited class of individuals who have relevant connections with both countries. These agreements also provide a procedure for the resolution of disputes between the taxing authorities of each country where adjustments are made by an authority to an enterprise’s income in response to unacceptable transfer pricing between related enterprises.  Further explanation is given in the section below that deals with the main aspects of the Bill.

Indian Agreement – main aspects

Amendment by Protocol of Article 5 of the Indian Agreement: permanent establishment

This amendment establishes that only business profits attributable to an enterprise’s ‘permanent establishment’ in the other country may be taxed in that country.  The amendment defines the circumstances in which an enterprise is taken to have a permanent establishment in a country and is therefore automatically taxed in that jurisdiction.

Subject to provisions outlined in other clauses in the Agreement, an enterprise of one country will be regarded as having a permanent establishment in the other country if it:

·         furnishes services, including consultancy services, through employees or other personnel engaged by the enterprise for such purpose, but only where activities of that nature continue (for the same or a connected project) within that other country for a period or periods aggregating more than 183 days in any 12 month period

·         carries on activities (including the operation of substantial equipment) in the other country in the exploration for or exploitation of natural resources situated in that other country for a period or periods exceeding in the aggregate 90 days in any 12 month period or

·         operates substantial equipment in the other country for a period or periods exceeding in the aggregate 183 days in any 12 month period.

The amendments made by the Protocol to Article 5 of the Indian Agreement will allow an enterprise of one country to operate in the other country for a longer period of time before it is deemed to have a permanent establishment in that other country. In comparison with the timeframes under the Protocol, as set out above, the current Indian Agreement provides that an enterprise is deemed to have a ‘permanent establishment’ in a country if it furnishes services in that country for more than 90 days in any 12 month period (or furnishes services for an associated entity for any period of time); carries on natural resource exploration or exploitation activities for any period of time; or uses substantial equipment for any period of time. This means that the original country will maintain taxation rights over an enterprise carrying on certain business in the other country for a longer period of time.    

Insertion by Protocol of Article 24A of the Indian Agreement; non discrimination

The Protocol inserts new Article 24A into the Indian Agreement to specify that Australia and India will not discriminate against the nationals of the other country in relation to tax. That is, nationals of India will not be subjected to taxation or taxation-related requirements in Australia that are different from, or more burdensome than, those imposed on Australian nationals. The same would apply in relation to Australian nationals in India. This provision will also apply to persons who are not residents of either jurisdiction, subject to provisions in other articles of the Agreement.

New Article 24A(2) provides that a permanent establishment of an enterprise of one country will not taxed less favourably than an enterprise of that country carrying on the same activities.[16] Importantly, however, this provision does not prevent a country from taxing the profits of a non-resident enterprise at a higher rate than it taxes the profits of a comparable resident enterprise.  This recognises ‘India’s long standing differential tax rate treatment between its resident companies and non-resident companies’.[17]

Additionally, this provision does not mean that a country has to grant individuals who are residents of the other country any personal allowances, reliefs or reductions for taxation purposes on account of civil status or family responsibilities which it grants to its own residents.

Amendment by Protocol of Article 26 of the Indian Agreement: the exchange of information

Article 26 of the Indian Protocol deals with the exchange of information between Australia and India. In its original 1991 form, Article 26 only required limited cooperation in the exchange of information. The revised article provides that India and Australia will exchange information as is ‘foreseeably relevant’ for carrying out the provisions of the Agreement or the administration or enforcement of domestic tax laws to which the Indian Agreement applies.[18] As is the case under current Article 26, a country that receives the information must treat it as secret ‘in the same manner as information obtained under [that country’s] domestic laws’. The country is only permitted to disclose the information to persons and authorities (including courts and administrative bodies) concerned with the assessment, collection, enforcement or prosecution of, and in relation to, the domestic tax laws. Any person or authority to whom the information is disclosed must also only use it for these purposes. They may disclose the information in public court proceedings or in judicial decisions.[19]

However, amended Article 26 also provides that received information may be used for other purposes where the use of the information for that purpose is permitted under the laws of both India and Australia and the country that supplies the information authorises its use for that purpose.

Neither India nor Australia is obliged to:

·         carry out measures at variance with the laws or administrative practice of either country

·         supply information which is not obtainable under the laws or in the normal course of the administration of either country or

·         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’.[20]

However, these provisos do not allow a country to decline to supply information solely because the information is held by a bank, other financial institution, nominee or trust.[21] The Explanatory Memorandum to the Bill states that this

… will not have any practical application for Australia, since Australian domestic tax law already permits the  Commissioner [of Taxation] to obtain information from banks and financial institutions in order to meet obligations under exchange of information articles in tax treaties or Tax Information Exchange Agreements.[22]

If one country requests information from the other country, the second country must use its information gathering powers to obtain the requested information, even though that second country may not need the information for its own tax purposes.[23]Insertion by Protocol of Article 26A of the Indian Agreement: assistance in collection of taxes

The Protocol inserts new Article 26A into the Indian Agreement to provide that Australia and India will assist each other in the collection of revenue claims. ‘Revenue claim’ means an amount owed in respect of taxes of every kind and description, imposed by either country. It also covers related costs, such as interest and administrative penalties.[24]

In addition, either country may request the other country to take measures to conserve assets that may be the subject of a revenue claim. The requested party must take such measures as are permitted under its domestic law, even if the revenue claim is not yet enforceable (for example, when final judgment as not been entered) or when the debtor is still able to prevent its collection.[25]

A country is to enforce a revenue claim of the other country as if it was a revenue claim of the first country, applying the laws that govern the enforcement and collection of taxes in that country.[26] However, proceedings challenging the existence, amount or validity of the revenue claim must be brought in the country in which that claim has arisen.[27]

Entry into force of Indian Protocol

The Indian protocol comes into force after the parties last notify each other of the completion of the necessary domestic procedures. In the case of Australia, this means this Bill becoming law. The commencement times for each major element of the Protocol are: in respect of Australian tax on income, profits or gains of any year of income beginning or after 1 July next following entry into force; in respect of Article 24A (non-discrimination) and Article 26 (exchange of information), upon entry into force; and in respect of Article 26A (assistance in the collection of taxes), on a date mutually agreed in an exchange of diplomatic notes.[28]

The Marshall Islands and Mauritius Agreements – main aspects

The Marshall Islands agreement and the Mauritius agreement allocate taxing rights between Australia and the other country in order to prevent double taxation in relation to specified types of income for a limited class of people who are resident in one of the relevant countries.

In relation to Australian sourced pensions and retirement annuities paid to residents of the Marshall Islands or Mauritius, Australia will not levy tax under the Agreements, provided the income is taxed in the other country. Similarly, pensions or retirement annuities received from the Marshall Islands or Mauritius by Australian residents can be taxed in Australia under the Agreement, if the income is not taxed in the Marshall Islands or Mauritius.

Under the agreements, the salaries of government employees of the Marshall Islands and Mauritius, working for non-commercial purposes in Australia, will not be taxed in Australia.  Similarly, Mauritius and the Marshall Islands will not impose taxation on similarly engaged Australian Government employees working in those countries.

The third element of the agreements is that foreign-sourced maintenance, education and training payments, made to students or business apprentices from the Marshall Islands and Mauritius, who are working temporarily in Australia, will not be taxed in Australia.  The Marshall Islands and Mauritius will similarly treat such payments received by Australian students and business apprentices working temporarily in those other countries.

Finally, a mechanism is included for resolving disputes arising from transfer pricing practices that are not conducted at ‘arm’s length’ as advocated by the OECD.  ‘Transfer pricing’ refers to the manner in which cross-border transactions between related parties are conducted, particularly in relation to price setting.  The OECD’s Transfer Pricing Guidelines state, ‘Transfer prices are significant for both taxpayers and tax administrations because they determine in large part the income and expenses, and therefore taxable profits, of associated enterprises in different tax jurisdictions.’[29]  The OECD recommends that for cross-border transactions between related enterprises, transfer pricing profits should be similar to the profits that would be recorded for comparable transactions between unrelated enterprises.[30]  The agreements allow the taxing authority of each country to make an adjustment where it considers taxable profits have been understated in its own jurisdiction due to artificially reduced prices for transactions between related enterprises.   

Committee consideration

Joint Standing Committee on Treaties

At the time of writing, the Bill has not been referred to a committee. As usual, however, the Joint Standing Committee on Treaties (JSCOT) has considered the treaties themselves.

JSCOT consideration of the Indian Protocol

On tabling the report on Indian Protocol[31], JSCOT pointed out that:

4.8               It is in Australia’s interest to utilise exchange of information (EOI) treaty provisions that meet the internationally agreed standard to combat tax avoidance and evasion, and to continue the Australian Government’s support of global action on improving information exchange and transparency.[32]

Recognising Australia’s continuing constructive relationship with India, JSCOT expressed optimism by stating that:

4.9              Australia enjoys a positive and constructive relationship with India, with a rapidly expanding bilateral commercial relationship. As a consequence, the proposed Protocol, in modernising the circumstances in which cross-border businesses come under the tax jurisdiction of the other country, will provide for certainty of treatment for businesses establishing themselves in the other country and will better reflect the state of the current trade and investment relationship.[33]

JSCOT concluded ‘having a better set of structures and mechanisms through which Australia can constructively interact with the burgeoning Indian economy was in Australia’s long term interests.’[34]

The Committee recommended that binding treaty action be taken.[35]

JSCOT consideration of the Marshall Islands and Mauritius Agreements

JSCOT considered together the four agreements with the Marshall Islands and Mauritius (and an agreement with Monserrat which is not the subject of this Bill). [36] They were considered together because they form part of Australia’s drive to implement the OECD standards on the elimination of harmful tax practices.[37]

JSCOT observed that:

3.5              More than 60 low tax countries have joined the Global Forum[38] and committed to the implementation of OECD standards on the elimination of harmful tax practices. The OECD claims that every country identified as a low tax country when the Global Forum commenced its work in 2000 has now agreed to cooperate with the OECD to remove harmful tax practices.[39]

JSCOT supports both the Mauritius and Marshall Islands agreements.[40]

Financial implications

Treasury estimated the revenue impact as unquantifiable in terms of the Indian Protocol and yet with the streamlining of measures, the revenue impact is slated to be positive. According to Treasury, for the Agreements with the Marshall Islands and Mauritius, the impact on Australian revenue is minimal.[41]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[42] The Government considers that the Bill is compatible.

Key provisions

Part 1 of Schedule 1 of the Bill amends subsection 3AAA(1) of the Agreements Act by inserting definitions of the Indian Protocol and the Mauritius and Marshall Islands Agreements.  Existing subsection 5(1) of the Agreements Act will give the defined agreements the force of law in Australia.

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ISSN 1328-8091

[1].              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, ATS [1991] No. 49 (entered into force 30 December 1991), viewed 30 January 2013, http://www.austlii.edu.au/au/other/dfat/treaties/ATS/1991/49.html

[2].              International Tax Agreements Act 1953, viewed 30 January 2013, http://www.comlaw.gov.au/Details/C2011C00513 

[3].              D Kar and S Freitas, Illicit financial flows from developing countries: 2001-2010, Global Financial Integrity, December 2012, p. 17, viewed 24 December 2012, http://iff.gfintegrity.org/documents/dec2012Update/Illicit_Financial_Flows_from_Developing_Countries_2001-2010-HighRes.pdf

[4].              M Stancati, ‘$123 billion lost in “black money”’, The Wall Street Journal, 18 December 2012, viewed 20 December 2012, http://blogs.wsj.com/indiarealtime/2012/12/18/123-billion-lost-in-black-money-report/   

[5].              Ibid.

[6].              Protocol Amending 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 New Delhi on 16 December 2011 (not yet in force), ATNIF [2011] 30, viewed 4 February 2013, http://www.austlii.edu.au/au/other/dfat/treaties/ATNIF/2011/30.html

[7].              Explanatory Memorandum, International Tax Agreements Amendment Bill 2012, pp. 12-15, viewed 4 February 2013, http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22legislation%2Fems%2Fr4934_ems_2526c6bd-adb1-48a2-bcb9-0edcf90dd312%22

[8].              Organisation for Economic Co-operation and Development (OECD), Towards global tax co-operation, report to the 2000 Ministerial Council Meeting and recommendations by the Committee on fiscal affairs – progress in identifying and eliminating harmful tax practices, OECD, 2000, p. 17, viewed 4 February 2013, http://www.oecd.org/dataoecd/9/61/2090192.pdf

[9].              Ibid., p. 29.

[10].              M D‘Ascenzo (Commissioner of Taxation), Tax havens and tax administration, Australian Taxation Office (ATO), December 2008, viewed 1 February 2013, http://www.ato.gov.au/content/downloads/LBI_46908_Tax_Havens_w.pdf

[11].              Agreement Between the Government of Australia and the Government of the Republic of the Marshall Islands on the Exchange of Information with Respect to Taxes done at Majuro on 12 May 2010 (entered into force 25 November 2011), ATS [2011] 39, viewed 30 January 2013, http://www.austlii.edu.au/au/other/dfat/treaties/ATS/2011/39.html

[12].              Agreement Between the Government of Australia  and the Government of the Republic of Mauritius on the Exchange of Information with Respect to Taxes done at Port Louis on 8 December 2010 (entered into force 25 November 2011), ATS [2011] 40, viewed 30 January 2013, http://www.austlii.edu.au/au/other/dfat/treaties/ATS/2011/40.html

[13].              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 (not yet in force), ATNIF [2010] 34, viewed 30 January 2013, http://www.austlii.edu.au/au/other/dfat/treaties/ATNIF/2010/36.html

[14].              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 to Establish a Mutual Agreement Procedure in Respect of Transfer Pricing Adjustments done at Port Louis on 8 December 2010 (not yet in force), ATNIF [2010] 53, viewed 30 January 2013, http://www.austlii.edu.au/au/other/dfat/treaties/ATNIF/2010/53.html,

[15].              National Interest Analysis [2011] ATNIA 17, Agreements 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 between Australia and the Marshall Islands done at Majuro on 12 May 2010 (not yet in force), ATNIF [2010] 36 and Mauritius done at Port Louis on 8 December 2010 (not yet in force), ATNIF [2010] 53, para. 8, viewed 4 February 2013, http://www.austlii.edu.au/au/other/dfat/ATNIA/2011/17.html,  

[16].              As set out above, whether an enterprise of one country has a ‘permanent establishment’ in the other country will be determined in accordance with amended Article 5 of the Indian Agreement.

[17].              Explanatory Memorandum, International Tax Agreements Amendment Bill 2012, p. 23.

[18].              Ibid., p. 14.

[19].              Paragraph 2 of revised article 26 as it appears in the Indian Protocol.

[20].              Paragraph 3 of revised article 26 as it appears in the Indian Protocol.

[21].              Paragraph 5 of revised article 26 as it appears in the Indian Protocol.

[22].              Explanatory Memorandum, International Tax Agreements Amendment Bill 2012, p. 28.

[23].              Paragraph 4 of revised article 26 as it appears in the Indian Protocol.

[24].              Paragraph 2 of new article 26A as it appears in the Indian Protocol.

[25].              Paragraph 4 of new article 26A as it appears in the Indian Protocol.

[26].              Paragraph 3 of new article 26A as it appears in the Indian Protocol.

[27].              Paragraph 6 of new article 26A as it appears in the Indian Protocol.

[28].              Explanatory Memorandum, International Tax Agreements Amendment Bill 2012, p. 3.

[29].              OECD, ‘Transfer pricing guidelines for multinational enterprises and tax administrations 2010’, OECD website, p. 19, 1 September 2010, viewed 6 February 2013, http://www.oecd.org/ctp/transferpricing/transferpricingguidelinesformultinationalenterprisesandtaxadministrations.htm 

[30].              According to the ATO: ‘The arm's length principle uses the behaviour of independent parties as a guide or benchmark to determine how income and expenses are allocated in international dealings between related parties. It involves comparing what a business has done and what a truly independent party would have done in the same or similar circumstances. The internationally accepted arm's length methodologies are based on comparing the outcomes of related party dealings with the same or similar dealings of independent parties. The concept of comparability is central to the arm's length principle’. See: http://www.ato.gov.au/corporate/content.aspx?menuid=0&doc=/content/35283.htm&page=2&H2

[31].              Joint Standing Committee on Treaties, Report 124 tabled on 10 May 2012, (Treaties tabled on 22 November 2011 and 7 February 2012), viewed 6 February 2012, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=jsct/7february2012/report.htm

[32].               Ibid., JSCOT report on Indian Protocol, chapter 4, p. 23.

[33].               Ibid., JSCOT report on Indian Protocol, chapter 4, p. 23.

[34].              Ibid., JSCOT report on Indian Protocol, chapter 4, p. 26, paragraph 4.24.

[35].              Ibid., JSCOT report on Indian Protocol, chapter 4, p. 26, paragraph 4.26.

[36].              Joint Standing Committee on Treaties, Report 120 tabled on 12 October 2011, (Treaties tabled on 5 July and 16 August 2011), viewed 6 February 2013, http://www.aph.gov.au/Parliamentary_Business/Committees/House_of_Representatives_Committees?url=jsct/16august2011/report.htm

[37].              Ibid., JSCOT Report on Mauritius Agreement and Marshall Islands Agreement, chapter 3, paragraph 3.2.

[38].               The Global Forum is the multilateral framework supervised by the OECD within which work in the area of transparency and exchange of tax information has been carried out by both OECD and non-OECD economies since 2000. Source: OECD, ‘Global forum on transparency and exchange of information for tax purposes’, viewed 6 February 2013, http://www.oecd.org/tax/transparency/

[39].              Ibid., JSCOT, Report on Marshall Islands, Mauritius and Montserrat, p. 17.

[40].              Ibid., JSCOT, Report on Marshall Islands, Mauritius and Montserrat, recommendations 7 and 8, p. 25.

[41].              Explanatory Memorandum, International Tax Agreements Amendment Bill 2012, p. 3-5.

[42].              The Statement of Compatibility with Human Rights can be found at page 71 of the Explanatory Memorandum to the Bill.             