ATO Interpretative Decision

ATO ID 2005/124

Income Tax

• This ATO ID contains references to repealed provisions, some of which may have been re-enacted or remade. The ATO ID is current in relation to the re-enacted or remade provisions.
  Australia's tax treaties and other agreements except for the Taipei Agreement are set out in the Australian Treaty Series. The citation for each is in a note to the applicable defined term in sections 3AAA or 3AAB of the International Tax Agreements Act 1953.

Issue

Is the fellowship income from Singapore received by a taxpayer, who is a resident of Singapore and of Australia, assessable income under subsection 6-5(2) of the Income Tax Assessment Act 1997 (ITAA 1997)?

Decision

No. The fellowship income from Singapore received by a taxpayer, who is a resident of Singapore and of Australia, is not assessable income under subsection 6-5(2) of the ITAA 1997.

Facts

The taxpayer is a citizen of Singapore and a resident of Singapore for tax purposes.

The taxpayer is also a resident of Australia for income tax purposes.

The taxpayer will be present in Australia for training for approximately 12 months.

The taxpayer lives in a rented apartment whilst in Australia.

The taxpayer previously lived with their family in Singapore.

The taxpayer is employed by a Singapore government department.

The taxpayer receives an award fellowship payment from a Singapore government department whilst training in Australia.

Reasons for Decision

Subsection 6-5(2) of the ITAA 1997 provides that the assessable income of an Australian resident includes all the ordinary income derived directly or indirectly from all sources, whether in or out of Australia, during the year of income.

Fellowship income is ordinary income for the purposes of subsection 6-5(2) of the ITAA 1997.

In determining liability to Australian tax on foreign sourced income 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 (Agreements Act).

Section 4 of the Agreements Act incorporates that Act with the ITAA 1997 so that those Acts are read as one.

Schedule 5 to the Agreements Act contains the double tax agreement between Australia and the Republic of Singapore (the Singapore Agreement). Schedule 5A to the Agreements Act contains the Protocol to the Singapore Agreement (the Singapore Protocol). The Singapore Agreement and the Singapore Protocol operate to avoid the double taxation of income received by Australian and Singaporean residents.

Article 3 of the Singapore Agreement provides tests of residency which are used where the individual would otherwise be a resident of both countries (tie breaker tests). The tiebreaker tests ensure that the individual is only treated as a resident of one country for the purposes of working out liability to tax on their income.

Article 3(2) of the Singapore Agreement provides that where an individual is both a Singapore resident and an Australian resident, the individual shall be treated solely as a Singapore resident using the following tests:

(a)

the individual will be treated to be a resident of the country in which the individual has a permanent home available;

(b)

if the individual has a permanent home in both countries, or does not have a permanent home in either, the individual will be deemed to be a resident of the country in which the individual has a habitual abode;

(c)

if the individual has a habitual abode in both countries, or does not have a habitual abode in either, the individual will be deemed to be a resident of the country with which the individual has the closest personal and economic relations.

The terms 'permanent home', 'habitual abode' and 'personal and economic relations' are undefined. Article 3(2) of the Singapore Agreement provides that any term not otherwise defined shall, unless the context otherwise requires, have the meaning which it has under the domestic laws of each country.

Taxation Ruling TR 2001/13 discusses the Commissioner's views about interpreting double tax agreements. Paragraph 104 states that the Commentaries on OECD Model Tax Convention on Income and on Capital (OECD Commentary) provide important guidance on interpretation and application of the OECD Model and will often need to be considered, as a matter of practice, in interpreting double tax agreements, at least where the wording is ambiguous.

The OECD Commentary provides that in relation to a 'permanent home':

(a)

for a home to be permanent, an individual must have arranged and retained it for his or her permanent use as opposed to staying at a particular place under such conditions that is evident that the stay is intended to be of short duration. The dwelling has to be available at all times continuously and not occasionally for the purposes of a stay, which owing to the reasons for it is necessarily of short duration (eg travel for pleasure, business travel, attending a course etc)

(b)

any form of home may be taken into account, including a house or apartment belonging to or rented by the individual and a rented furnished room.

The taxpayer has a permanent home available to them in Singapore and in Australia. The taxpayer also has an habitual abode in Singapore and in Australia. However, as the taxpayer's personal and economic ties are closest to Singapore, the taxpayer is treated as a resident of Singapore for the purposes of applying the Singapore Agreement.

Article 15 of the Singapore Agreement provides that when a student or trainee who is a resident of Singapore, or was a resident of Singapore immediately before visiting Australia, and who is present in Australia solely for the purposes of their education or training receives payments from sources outside Australia for the purpose of their maintenance, education or training, those payments will not be taxed in Australia.

Article 14(2) of the Singapore Agreement provides remuneration (other than pensions) paid by the Government of Singapore to any individual for services rendered to that Government in the discharge of governmental functions shall be exempt from Australian tax, except where the individual is a resident of Australia and is not a Singapore resident.

Article 15 of the Singapore Agreement will not apply as the taxpayer is not a student or a business apprentice or trainee.

The fellowship income received by the taxpayer from the Singapore Government department is exempt from tax under Article 14(2) of the Singapore Agreement as the taxpayer is a resident of Singapore and the payment is for services rendered in the discharge of governmental functions.

Accordingly, the fellowship income will not be assessable income under subsection 6-5(2) of the ITAA 1997.

Year of income:  Year ended 30 June 2004 Year ending 30 June 2005

Legislative References:
Income Tax Assessment Act 1997
   subsection 6-5(2)

Related Public Rulings (including Determinations)
Taxation Ruling TR 2001/13

Related ATO Interpretative Decisions
ATO ID 2005/123
ATO ID 2005/125

Keywords
Scholarships, fellowships & bursaries
Double tax agreements
Foreign income
International tax
Singapore

Siebel/TDMS Reference Number:  4020708

Business Line:  Public Groups and International

Date of publication:  13 May 2005

ISSN: 1445-2782