Draft Taxation Determination

TD 93/D218

Income tax: does the definition of "the Netherlands" in the Australia-Netherlands Double Tax Agreement ("the DTA") include Aruba and the Netherlands Antilles?

• Please note that the PDF version is the authorised version of this draft ruling.
  This document has been finalised by TD 93/218.

FOI status:

draft only - for comment

Preamble

1. No. Article 3(b) of the DTA defines the Netherlands as follows:

"the term 'the Netherlands' means that part of the Kingdom of the Netherlands that is situated in Europe and that part of the seabed and its sub-soil under the North Sea over which the Kingdom of the Netherlands has sovereign rights in accordance with internatonal law."

2. According to Dutch Business Law (S R Schuit, M Romyn, G H Zevenboom and B Shifman, Kluwer Law and Taxation Publishers, 1989) the Kingdom of the Netherlands consists of the Netherlands, the Netherlands Antilles (Curacoa, Bonaire, St. Maarten, Saba and St. Eustatius) and Aruba. The Netherlands Antilles and Aruba are located in the Caribbean and are clearly not "part of the Kingdom of the Netherlands that is situated in Europe". Accordingly, these islands are not included in the definition of the Netherlands for the purposes of the DTA.

3. Note also that Article 28 of the DTA provides, in effect, for diplomatic notes to be exchanged to extend the Agreement to the Netherlands Antilles or Aruba. To date no such notes have been exchanged.

Commissioner of Taxation
26/8/93

References

BO NAT 93/2738-0

Subject References:
Australia-Netherlands Double Taxation Agreement
definition of Netherlands
Aruba
Netherlands Antilles

Legislative References:
Income Tax (International Agreements) Act 1953, Section 11A
Income Tax (International Agreements) Act 1953, Schedule 10