ATO Interpretative Decision
ATO ID 2003/1032 (Withdrawn)
Income Tax
Assessability of Australian sourced Eligible Termination Payment paid to resident of the Czech Republic: undeducted contributionsFOI status: may be released
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This ATO ID is withdrawn from 1 July 2007 as the position stated in the ATO ID is not current due to the superannuation law changesThis document incorporates revisions made since original publication. View its history and amending notices, if applicable.
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Is an Eligible Termination Payment (ETP) paid to a non resident that consists wholly of undeducted contributions made by the taxpayer assessable under subsection 6-10(5) of the Income Tax Assessment Act 1997 (ITAA 1997)?
Decision
No. The ETP paid to a non resident that consists wholly of undeducted contributions made by the taxpayer is not assessable under subsection 6-10(5) of the ITAA 1997.
Facts
The taxpayer is a resident of the Czech Republic for income tax purposes.
The taxpayer is a non resident of Australia for income tax purposes.
The taxpayer worked in Australia and contributed to a complying superannuation fund during their employment.
The taxpayer withdrew their undeducted contributions from the superannuation fund.
Reasons for Decision
Subsection 6-10(5) of the ITAA 1997 provides that the assessable income of a non resident taxpayer includes statutory income derived from all Australian sources and other statutory income included by a provision on a basis other than having an Australian source.
Section 10-5 of the ITAA 1997 lists those provisions about assessable income. Included in this list are ETPs dealt with under sections 27A to 27H of the Income Tax Assessment Act 1936 (ITAA 1936) which provide that various components of an ETP are included in assessable income.
Section 27AA of the ITAA 1936 provides that undeducted contributions form one component of an ETP.
Sections 27B and 27C of the ITAA 1936 include specific components of an ETP in assessable income. However, undeducted contributions are not included in assessable income by any provision of the ITAA 1936 or ITAA 1997.
In determining liability to tax on Australian source income received by a non resident, it is necessary to consider not only the income tax laws but also any applicable double tax agreement contained in the International Tax Agreements Act 1953 (the Agreements Act).
Section 4 of the Agreements Act incorporates that Act with the ITAA 1936 and ITAA 1997 so that those Acts are read as one.
Schedule 40 to the Agreements Act contains the double tax agreement between Australia and the Czech Republic (the Czech Agreement). The Czech Agreement operates to avoid the double taxation of income received by Australian and Czech Republic residents.
Article 15(1) of the Czech Agreement provides that salaries, wages and other similar remuneration derived by a resident of the Czech Republic in respect of an employment shall be taxable only in the Czech Republic unless the employment is exercised in Australia in which case such remuneration may be taxed in Australia.
An ETP is not considered to be 'salary, wages' or 'other similar remuneration' and therefore does not come within the scope of Article 15 of the Czech Agreement.
Article 18(1) of the Czech Agreement provides that pensions and annuities paid to a resident of the Czech Republic shall be taxable only in the Czech Republic.
An ETP is not a pension or annuity and is therefore not within the scope of Article 18 of the Czech Agreement.
Article 21(1) of the Czech Agreement provides that income not dealt with under foregoing Articles of the Czech Agreement received by a resident of the Czech Republic shall be taxable only in the Czech Republic.
However, Article 21(2) of the Czech Agreement provides that income received by a resident of the Czech Republic from sources in Australia may be taxed in Australia.
As the ETP received by the taxpayer is from an Australian source, the ETP may be taxed by Australia under Article 21(2) of the Czech Agreement.
However, as the ETP consists wholly of undeducted contributions made by the taxpayer to the superannuation fund, the ETP will not be assessable under subsection 6-10(5) of the ITAA 1997.
Date of decision: 10 November 2003Year of income: Year ended 30 June 2004
Legislative References:
Income Tax Assessment Act 1936
section 27A
section 27AA
section 27B
section 27C
section 27H
subsection 6-10(5)
section 10-5 International Tax Agreements Act 1953
section 4
Schedule 40
Schedule 40, Article 15
Schedule 40, Article 15(1)
Schedule 40, Article 18
Schedule 40, Article 18(1)
Schedule 40, Article 21(1)
Schedule 40, Article 21(2)
Keywords
Double tax agreement
Czech Republic
Other income
Lump sum payments
Superannuation
Non-resident
ISSN: 1445-2782
| Date: | Version: | |
| 10 November 2003 | Original statement | |
| You are here | 26 October 2007 | Archived |