House of Representatives

Explanatory Memorandum

Circulated By the Authority of the Deputy Prime Minister and Treasurer, the Hon Wayne Swan MP

Chapter 8 Australia-Guernsey agreement

Outline of chapter

5.1 Schedule 2 to this Bill amends the International Tax Agreements Act 1953 (Agreements Act 1953) to define and give the force of law to the 2009 Agreement between the Government of Australia and the States of Guernsey for the Allocation of Taxing Rights with respect to Certain Income of Individuals and to Establish a Mutual Agreement Procedure in respect of Transfer Pricing Adjustments (Guernsey agreement). Subsection 3AAA(1) of the Agreements Act 1953 will define the Guernsey agreement and subsection 5(1) will give it the force of law in Australia. This chapter explains the rules that apply in the Guernsey agreement.

Context of amendments

5.2 The Guernsey agreement was signed in London on 7 October 2009. There is no pre-existing agreement of this type between Australia and Guernsey.

Summary of new law

Main features of the agreement

5.3 The main features of the Guernsey agreement are as follows:

•

Income from government service will generally be taxed only in the country that pays the remuneration. However, the remuneration shall only be taxed in the other country where the services are rendered in that other country by a resident of that other country who is a national of that other country or did not become a resident of that other country for the purpose of rendering the services. [Article 5]

•

Payments made from abroad to visiting students and business apprentices for the purposes of their maintenance, education or training will be exempt from tax in the country visited. [Article 6]

•

A non-binding administrative mechanism will be established to assist taxpayers to seek resolution of transfer pricing disputes. [Article 7]

Comparison of key features of new law and current law

The Guernsey agreement

5.4 A full transcript of the Guernsey agreement and detailed explanation follows:

' AGREEMENT BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE STATES OF GUERNSEY FOR THE ALLOCATION OF TAXING RIGHTS WITH RESPECT TO CERTAIN INCOME OF INDIVIDUALS AND TO ESTABLISH A MUTUAL AGREEMENT PROCEDURE IN RESPECT OF TRANSFER PRICING ADJUSTMENTS

The Government of Australia and the States of Guernsey ("the Parties"),

Recognising that the Parties have concluded an Agreement for the Exchange of Information Relating to Tax Matters, and

Desiring to conclude an Agreement 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,

Have agreed as follows:

ARTICLE 1

PERSONS COVERED

This Agreement shall apply to persons who are residents of one or both of the Parties.

ARTICLE 2

TAXES COVERED

1 The existing taxes to which this Agreement shall apply are:

(a)

in the case of Australia, the income tax imposed under the federal law of Australia;

(hereinafter referred to as "Australian tax");

(b)

in the case of Guernsey:

(i)

income tax;

(ii)

dwellings profits tax;

(hereinafter referred to as "Guernsey tax").

2 This Agreement shall also apply to any identical or substantially similar taxes which are imposed after the date of signature of this Agreement in addition to, or in place of, the existing taxes. The competent authorities of the Parties shall notify each other within a reasonable period of time of any substantial changes to the taxation laws covered by this Agreement.

3 This Agreement shall not apply to taxes imposed by states, municipalities, local authorities or other political subdivisions, or possessions of a Party.

ARTICLE 3

DEFINITIONS

1 For the purposes of this Agreement, unless the context otherwise requires:

(a)

"Australia", when used in a geographical sense, excludes all external territories other than:

(i)

the Territory of Norfolk Island;

(ii)

the Territory of Christmas Island;

(iii)

the Territory of Cocos (Keeling) Islands;

(iv)

the Territory of Ashmore and Cartier Islands;

(v)

the Territory of Heard Island and McDonald Islands; and

(vi)

the Coral Sea Islands Territory,

and includes any area adjacent to the territorial limits of Australia (including the Territories specified in this subparagraph) in respect of which there is for the time being in force, consistently with international law, a law of Australia dealing with the exploration for or exploitation of any of the natural resources of the exclusive economic zone or the seabed and subsoil of the continental shelf;

(b)

"Guernsey" means Guernsey, Alderney and Herm, including the territorial sea adjacent to those islands, in accordance with international law;

(c)

"competent authority" means in the case of Australia, the Commissioner of Taxation or an authorised representative of the Commissioner and, in the case of Guernsey, the Director of Income Tax or his delegate;

(d)

"person" includes an individual, a company and any other body of persons;

(e)

"tax" means Australian tax or Guernsey tax as the context requires; and

(f)

"transfer pricing adjustment" means an adjustment made by the competent authority of a Party to the profits of an enterprise as a result of applying the domestic tax law concerning taxes referred to in Article 2 of that Party regarding transfer pricing.

2 As regards the application of this Agreement at any time by a Party, any term not defined therein shall, unless the context otherwise requires, have the meaning that it has at that time under the law of that Party, for the purposes of the taxes to which this Agreement applies, any meaning under the applicable tax laws of that Party prevailing over a meaning given to the term under other laws of that Party.

ARTICLE 4

RESIDENT

1 For the purposes of this Agreement, the term "resident of a Party" means:

(a)

in the case of Australia, a person who is a resident of Australia for the purposes of Australian tax; and

(b)

in the case of Guernsey, a person who is a resident of Guernsey for the purposes of Guernsey tax.

2 A person is not a resident of a Party for the purposes of this Agreement if the person is liable to tax in that Party in respect only of income from sources in that Party.

3 Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Parties, then the person's status shall be determined as follows:

(a)

the individual shall be deemed to be a resident only of the Party in which a permanent home is available to that individual; if a permanent home is available in both Parties, or in neither of them, that individual shall be deemed to be a resident only of the Party with which the individual's personal and economic relations are closer (centre of vital interests);

(b)

if the Party in which the individual's centre of vital interests cannot be determined, the individual shall be deemed to be a resident only of the Party in which the individual has an habitual abode;

(c)

if the individual has an habitual abode in both Parties, or in neither of them, the competent authorities of the Parties shall settle the question by mutual agreement;

4 Where, by reason of paragraph 1, a person other than an individual is a resident of both Parties, then it shall be deemed to be a resident only of the Party in which its place of effective management is situated.

ARTICLE 5

GOVERNMENT SERVICE

1(a)

Salaries, wages and other similar remuneration paid by a Party or a political subdivision or a local authority thereof to an individual in respect of services rendered to that Party or subdivision or authority shall be taxable only in that Party.

(b)

However, such salaries, wages and other similar remuneration shall be taxable only in the other Party if the services are rendered in that Party and the individual is a resident of that Party who:

(i)

is a national or citizen of that Party; or

(ii)

did not become a resident of that Party solely for the purpose of rendering the services.

2 Notwithstanding the provisions of paragraph 1, salaries, wages and other similar remuneration paid in respect of services rendered in connection with a business carried on by a Party or political subdivision or a local authority thereof may be taxed in accordance with the laws of a Party.

ARTICLE 6

STUDENTS

Payments which a student or business apprentice, who is or was immediately before visiting a Party a resident of the other Party and who is temporarily present in the first-mentioned Party solely for the purpose of their education or training, receives for the purpose of their maintenance, education or training shall not be taxed in that Party, provided such payments arise from sources outside that Party.

ARTICLE 7

MUTUAL AGREEMENT PROCEDURE IN RESPECT OF TRANSFER PRICING ADJUSTMENTS

1 Where a resident of a Party considers the actions of the other Party result or will result in a transfer pricing adjustment not in accordance with the arm's length principle, the resident may, irrespective of the remedies provided by the domestic law of those Parties, present a case to the competent authority of the first-mentioned Party. The case must be presented within three years of the first notification of the adjustment.

2 The competent authorities shall endeavour to resolve any difficulties or doubts arising as to the application of the arm's length principle by a Party regarding transfer pricing adjustments. They may also communicate with each other directly for the purposes of this Article.

ARTICLE 8

EXCHANGE OF INFORMATION

The competent authorities of the Parties shall exchange such information as is foreseeably relevant for carrying out the provisions of this Agreement. Information may be exchanged by the competent authorities for the purposes of this Article in accordance with the provisions of the Agreement for the Exchange of Information Relating to Tax Matters concluded by the Parties (whether or not this Agreement, in whole or in part, forms part of the domestic law of either Party).

ARTICLE 9

ENTRY INTO FORCE

The Parties shall notify each other, in writing, through the appropriate channel of the completion of their constitutional and legal procedures for the entry into force of this Agreement. This Agreement shall enter into force on the thirtieth day after the date of the last notification and shall, provided an Agreement for the Exchange of Information Relating to Tax Matters is in force between the Parties, thereupon have effect:

(a)

in respect of Australian tax, for any year of income beginning on or after the first day of July in the calendar year next following the date on which this Agreement enters into force; and

(b)

in respect of Guernsey tax, for any year of charge beginning on or after the first day of January in the calendar year next following the date on which this Agreement enters into force.

ARTICLE 10

TERMINATION

1 This Agreement shall continue in effect indefinitely, but either of the Parties may, after the expiration of 3 years from the date of its entry into force, give to the other Party written notice of termination.

2 Such termination shall become effective:

(a)

in respect of Australian tax, in the year of income beginning on or after the first day of July in the calendar year next following the date on which the notice of termination is given;

(b)

in respect of Guernsey tax, for any year of charge beginning on or after the first day of January in the calendar year next following the date on which the notice of termination is given.

3 Notwithstanding the provisions of paragraphs 1 and 2, this Agreement shall, upon receipt of written notice of termination of the Agreement for the Exchange of Information Relating to Tax Matters between the Parties, terminate and cease to be effective on the first day of the month following the expiration of a period of six months after the date of receipt of such notice.

IN WITNESS WHEREOF the undersigned, being duly authorised in that behalf by their respective Parties, have signed this Agreement.

DONE at [ ], [ ] this [ ] day of [ ], 200[ ], in duplicate.

FOR THE GOVERNMENT OF FOR THE STATES OF

AUSTRALIA: GUERNSEY:'

Detailed explanation of new law

Article 1 - Persons Covered

5.5 This Article establishes the scope of the application of the Guernsey agreement by providing for it to apply to persons who are residents of one or both of the countries [Article 1] . For the purposes of the agreement persons includes an individual, company and other body of persons (see paragraph 5.15).

5.6 The application of the Guernsey agreement to persons who are dual residents (that is, residents of both countries) is dealt with in Article 4 ( Resident ) (see paragraph 5.21).

Article 2 - Taxes Covered

5.7 This Article specifies the existing taxes of each country to which the Guernsey agreement applies. This is, in the case of Australia, the federal income tax. [Article 2, subparagraph 1a)]

5.8 For Guernsey, this agreement applies to income tax and dwellings profits tax. [Article 2, subparagraph 1b)]

5.9 The application of the Guernsey agreement will be automatically extended to any identical or substantially similar taxes which are subsequently imposed by either country in addition to, or in place of, the existing taxes. The competent authorities of Australia and Guernsey are required to notify each other in the event of a substantial changes to the taxation laws covered by the agreement, within a reasonable period of time after those changes. [Article 2, paragraph 2]

5.10 The Guernsey agreement does not apply to taxes imposed by states, municipalities, local authorities or other political subdivisions or possessions. [Article 2, paragraph 3]

Article 3 - Definitions

Definition of Australia

5.11 The definition of 'Australia' follows corresponding definitions in Australia's modern tax treaties. 'Australia' is defined to include certain external territories and areas of the continental shelf. [Article 3, subparagraph 1a)]

Definition of Guernsey

5.12 Guernsey is defined to mean Guernsey, Alderney and Herm including the territorial sea adjacent to those islands, in accordance with international law. [Article 3, subparagraph 1b)]

Definition of competent authority

5.13 The 'competent authority' is the person or institution specifically authorised to perform certain actions under the Guernsey agreement. For example, to notify each other of any significant changes to the tax law of their respective countries, Article 2 ( Taxes Covered ) to communicate for the purposes of Article 7 ( Mutual Agreement Procedure ) and to exchange information in accordance with Article 8 ( Exchange of Information ).

5.14 In the case of Australia, the competent authority is the Commissioner of Taxation (Commissioner) or an authorised representative of the Commissioner. In the case of Guernsey, the competent authority is the Director of Income Tax or his delegate. [Article 3, subparagraph 1c)]

Definition of person

5.15 'Person' includes an individual, a company and any other body of persons [Article 3, subparagraph 1d)] . However, Article 7 ( Mutual Agreement Procedure ) is the only substantive Article of the Guernsey agreement that will affect persons that are non-individuals.

Definition of tax

5.16 'Tax' means Australian tax or Guernsey tax, as the context requires. [Article 3, subparagraph 1e)] . See paragraph 5.7 to 5.10 for taxes covered by the Guernsey agreement.

Definition of transfer pricing adjustment

5.17 A transfer pricing adjustment is an adjustment made by the tax authorities of Australia or Guernsey to the profits of an enterprise, based on the application of domestic transfer pricing laws [Article 3, subparagraph 1f)] . For Australia, such laws are contained in Division 13 of Part III of the Income Tax Assessment Act 1936 (ITAA 1936).

Terms not specifically defined

5.18 A term that is not specifically defined in the Guernsey agreement shall have (unless the context requires otherwise) the meaning that it has under the domestic law of the country applying the Guernsey agreement at the time of its application. In that case, the term's domestic taxation law meaning will have precedence over any meaning it may have under that country's other domestic laws. [Article 3, paragraph 2]

Article 4 - Resident

5.19 This Article sets out the basis upon which the residential status of a person is to be determined for the purposes of the Guernsey agreement. Residential status is a criterion for determining each country's taxing rights and is a necessary condition for the provision of relief under the Guernsey agreement. In the case of Australia, a person's residence is determined according to Australia's taxation law [Article 4, subparagraph 1a)] . In the case of Guernsey residence is determined according to Guernsey taxation law [Article 4, subparagraph 1b)] .

Special residency rules

5.20 A 'person' is not a resident of a country, for the purposes of the Guernsey agreement, if that person is liable to tax in that country in respect only of income from sources in that country [Article 4, paragraph 2] . In the Australian context, this would mean, for example, that Norfolk Island residents, who are generally only subject to Australian tax on Australian source income, are not residents of Australia for the purposes of the Guernsey agreement. Accordingly, Guernsey will not have to forego tax in accordance with the Guernsey agreement on income derived by Norfolk Island residents (which will not be subject to Australian tax).

Dual residents

5.21 Tie-breaker rules are included for determining residency of a person, for the purposes of the Guernsey agreement, if the person qualifies as a resident of both countries in accordance with paragraph 1 of Article 4. In the case of an individual the rules, in order of application, are:

•

if the individual has a permanent home available to himself or herself in only one of the countries, the person is deemed to be a resident solely of that country [Article 4, subparagraph 3a)] ;

•

if the individual has a permanent home available in both countries or in neither, then the person's residential status takes into account their personal or economic relations with Australia and Guernsey, and the person is deemed for the purposes of the Guernsey agreement to be a resident only of the country with which they have the closer personal and economic relations [Article 4, subparagraph 3a)] ;

•

if the individual has an habitual abode in either Australia or Guernsey the person is deemed to be a resident of that country [Article 4, subparagraph 3b)] ;

•

if the individual has a habitual abode in both countries, or of neither, the competent authorities will resolve the question of treaty residence by mutual agreement [Article 4, subparagraph 3c)] .

5.22 In the case of a non-individual, that is a company, partnership or other body or person, which would under paragraph 1 of Article 4 be a resident of both Australia and Guernsey, then the entity will be deemed to be a resident of the country in which the place of effective management is situated. [Article 4, paragraph 4]

5.23 In relation to Australia, a dual resident remains a resident for the purposes of Australian domestic law. Accordingly, that person remains liable to tax in Australian as a resident, insofar as the Guernsey agreement allows.

Article 5 - Government Service

5.24 Salary and wage type income, paid to an individual for services rendered to a government of one of the countries (including a political subdivision or local authority), is to be taxed only in that country. However, such remuneration will be taxable only in the other country if the services are rendered in that other country and:

•

the recipient is a resident of, and a national or citizen of, that other country; or

•

the recipient is a resident of that other country and did not become a resident of that country solely for the purpose of rendering the services (for example, if the recipient is a permanent resident of that other country).

[Article 5, subparagraph 1b)]

Business income

5.25 Remuneration in respect of services rendered in connection with a trade or business carried on by a governmental authority is excluded from the scope of the Article. Such remuneration will remain subject to the domestic taxation laws of the two countries. [Article 5, paragraph 2]

Article 6 - Students

Exemption from tax

5.26 This Article applies to students or business apprentices who are temporarily present in one of the countries solely for the purpose of their education or training if they are, or immediately before the visit were, resident in the other country. In these circumstances, payments from abroad received by the students or business apprentices solely for their maintenance, education or training will be exempt from tax in the country visited [Article 6] . This will apply even though the student or apprentice may qualify as a resident of the country visited during the period of their visit.

Employment income

5.27 Where a student, from Guernsey, visiting Australia solely for educational purposes undertakes employment in Australia, for example, part-time work with a local employer, the income earned by that student as a consequence of that employment may be subject to tax in Australia.

5.28 For business apprentices, this Article only applies where the apprentice's remuneration consists solely of subsistence payments to cover training or maintenance. Remuneration for service, that is, salary equivalents, falls for consideration under domestic taxation law.

5.29 In the case of a business apprentice visiting Australia from Guernsey solely for training purposes, it may therefore be necessary to distinguish between remuneration for service and a payment for the apprentice's maintenance or training.

5.30 A payment for maintenance or training would not be expected to exceed the level of expenses likely to be incurred to ensure the apprentice's maintenance and training (that is, a subsistence payment). If the remuneration is similar to the amounts paid to persons who provide similar services who are not business apprentices (that is, salary equivalent), this would generally indicate that the payments constitute income from employment that would fall for consideration under domestic taxation law. Likewise, if that business apprentice undertakes any other employment in Australia, the income earned from that employment may be subject to tax in Australia.

5.31 Where a taxpayer received both exempt income and assessable income, the exempt income may in some cases be taken into account in determining the rate of tax payable on the assessable income. However, payments received from abroad for a student's or apprentice's maintenance, education or training will not be taken into account in determining the tax payable on the employment income that is subject to tax in Australia.

Article 7 - Mutual Agreement Procedure in Respect of Transfer Pricing Adjustments

5.32 This Article provides for consultation between the competent authorities of the two countries for the purpose of endeavouring to resolve disputes concerning transfer pricing adjustments purportedly made not in accordance with the arm's length principle. [Article 7, paragraph 2]

5.33 The term 'arm's length principle' refers to the requirement that businesses price their related party international dealings according to what truly independent parties acting independently would reasonably be expected to have done in the same situation. In Australia the Commissioner would apply the arm's length principle when reviewing business transactions in the context of Division 13 of Part III of the ITAA 1936.

5.34 A person wishing to use this mutual agreement procedure must present their case to the competent authority of their country of residence within three years of the first notification of the transfer pricing adjustment. This procedure operates independently of, and in addition to, domestic legal remedies available to taxpayers. [Article 7, paragraph 1]

Article 8 - Exchange of Information

5.35 This Article authorises and limits the exchange of information by the competent authorities to information that is foreseeably relevant to the administration of the Guernsey agreement. [Article 8]

5.36 The exchange of information is subject to the provisions of the Agreement for the Exchange of Information Relating to Tax Matters , which was signed by Australia and Guernsey 7 October 2009. After it takes effect, that agreement will provide for exchange of information that is foreseeably relevant to the administration of the taxation laws of the two countries. It also contains safeguards to protect taxpayers' rights. For example:

•

confidentiality rules to ensure that information exchanged is only disclosed to authorised recipients; and

•

limitations to ensure that the competent authorities do not exceed domestic laws and administrative procedures in the course of obtaining and supplying information.

Article 9 - Entry into Force

Date of entry into force

5.37 The Guernsey agreement will enter into force on the thirtieth day after the date of the last exchange of diplomatic notes notifying that the domestic procedures to give it the force of law have been completed. In Australia, enactment of the legislation giving the Guernsey agreement the force of law along with tabling the Guernsey agreement in Parliament are prerequisites to the exchange of diplomatic notes. Entry into force is also conditional upon the related Agreement for the Exchange of Information Relating to Tax Matters between the two countries being in force at that time.

Date of application in Australia

5.38 Following entry into force, the Guernsey agreement will take effect in Australia in respect of any income year beginning on or after 1 July in the calendar year next following the date on which it enters into force. [Article 9, subparagraph a)]

Date of application in Guernsey

5.39 Following entry into force, the Guernsey agreement will take effect in Guernsey in respect of any year of charge beginning on or after 1 January in the calendar year next following the date on which it enters into force. [Article 9, subparagraph b)]

Article 10 - Termination

5.40 The Guernsey agreement is to continue in effect indefinitely. However, after the expiration of three years from the date of entry into force either country may give the other country written notice of termination of the agreement through diplomatic channels. [Article 10, paragraph 1]

Cessation in Australia

5.41 In the event of either country terminating the Guernsey agreement, it would cease to be effective in Australia in the year of income beginning on or after 1 July in the calendar year next following that in which the notice of termination is given. [Article 10, subparagraph 2a)]

Cessation for Guernsey

5.42 The Guernsey agreement would correspondingly cease to be effective in Guernsey for any year of charge beginning on or after 1 January in the calendar year next following that in which the notice of termination is given. [Article 10, subparagraph 2b)]

Cessation in other circumstances

5.43 The Guernsey agreement will also terminate and cease to be effective if the Agreement for the Exchange of Information Relating to Tax Matters between Australia and Guernsey is terminated. In that event, the Guernsey agreement would terminate on the first day of the month following the expiration of six months after receipt of notification of termination of the Agreement for the Exchange of Information Relating to Tax Matters . [Article 10, paragraph 3]