AUSTRALIAN TAX TREATIES

New Zealand Convention  

CONVENTION BETWEEN AUSTRALIA AND NEW ZEALAND FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAXES ON INCOME AND FRINGE BENEFITS AND THE PREVENTION OF FISCAL EVASION  

CHAPTER II - DEFINITIONS  

ARTICLE 5   Permanent Establishment  

1.  
For the purposes of this Convention, the term " permanent establishment " means a fixed place of business through which the business of the enterprise is wholly or partly carried on.

2.  
The term " permanent establishment " includes especially:


a) a place of management;


b) a branch;


c) an office;


d) a factory;


e) a workshop;


f) a mine, an oil or gas well, a quarry or any other place of extraction of natural resources; and


g) an agricultural, pastoral or forestry property.

3.  
[ ATO Notation: MODIFIED by paragraph 1 of Article 14 of the MLI] [1]

Refer to text box immediately following Article 5(6) of the Convention.

A building site or a construction, installation or assembly project shall constitute a permanent establishment but only if it lasts more than 6 months.

4.  
Notwithstanding the provisions of paragraphs 1, 2 and 3, where an enterprise of a Contracting State:


a) performs services in the other Contracting State


(i) through an individual who is present in that other State for a period or periods exceeding in the aggregate 183 days in any twelve month period, and more than 50 per cent of the gross revenues attributable to active business activities of the enterprise during this period or periods are derived from the services performed in that other State through that individual, or

(ii) for a period or periods exceeding in the aggregate 183 days in any twelve month period, and these services are performed for the same project or for connected projects through one or more individuals who are present and performing such services in that other State;


b) carries on activities (including the operation of substantial equipment) in the other State in the exploration for or exploitation of natural resources or standing timber situated in that other State for a period or periods exceeding in the aggregate 90 days in any twelve month period; or


c) operates substantial equipment in the other State (including as provided in subparagraph b) ) for a period or periods exceeding in the aggregate 183 days in any twelve month period,

such activities shall be deemed to be carried on through a permanent establishment of the enterprise situated in that other State, unless the activities are limited to those mentioned in paragraph 7 which, if exercised through a fixed place of business, would not make this place of business a permanent establishment under the provisions of that paragraph.

5.  
For the purposes of subsubparagraph a)(ii) of paragraph 4, services performed by an individual on behalf of one enterprise shall not be considered to be performed by another enterprise through that individual unless that other enterprise supervises, directs or controls the manner in which these services are performed by the individual. Furthermore, services performed through an individual who is present and performing such services in a State for any period not exceeding 5 days shall be disregarded for the purposes of subsubparagraph a)(ii) of paragraph 4, unless such services are performed by that individual in that State on a regular or frequent basis.

6.  
[ ATO Notation: REPLACED by paragraph 1 of Article 14 of the MLI but only to the extent that the provisions below address the division of contracts into multiple parts to avoid the application of the time period in paragraph 3 in relation to the existence of a permanent establishment for a building site or a construction, installation or assembly project]


a) The duration of activities under paragraphs 3 and 4 will be determined by aggregating the periods during which activities are carried on in a Contracting State by associated enterprises provided that the activities of the enterprise in that State are connected with the activities carried on in that State by its associate.


b) The period during which two or more associated enterprises are carrying on concurrent activities will be counted only once for the purpose of determining the duration of activities.


c) Under this Article, an enterprise shall be deemed to be associated with another enterprise if:


(i) one is controlled directly or indirectly by the other; or

(ii) both are controlled directly or indirectly by the same person or persons.

7.  
[ ATO Notation: MODIFIED by paragraph 4 of Article 13 of the MLI] Notwithstanding the preceding provisions of this Article, the term " permanent establishment " shall be deemed not to include:


a) the use of facilities solely for the purpose of storage, display or delivery of goods or merchandise belonging to the enterprise;


b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or delivery;


c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise;


d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise;


e) the maintenance of a fixed place of business solely for the purpose of carrying on, for the enterprise, any other activity of a preparatory or auxiliary character;


f) the maintenance of a fixed place of business solely for any combination of activities mentioned in sub-paragraphs a) to e) of this paragraph,

provided that such activities are, in relation to the enterprise, of a preparatory or auxiliary character.

8.  
Notwithstanding the provisions of paragraphs 1 and 2, where a person - other than an agent of an independent status to whom paragraph 9 applies - is acting on behalf of an enterprise and:


a) has, and habitually exercises, in a Contracting State an authority to substantially negotiate or conclude contracts on behalf of the enterprise; or


b) manufactures or processes in a Contracting State for the enterprise goods or merchandise belonging to the enterprise,

that enterprise shall be deemed to have a permanent establishment in that State in respect of any activities which that person undertakes for the enterprise, unless the activities of such person are limited to those mentioned in paragraph 7 which, if exercised through a fixed place of business, would not make this fixed place of business a permanent establishment under the provisions of that paragraph.

9.  
An enterprise shall not be deemed to have a permanent establishment in a Contracting State merely because it carries on business in that State through a person who is a broker, general commission agent or any other agent of an independent status, provided that such persons are acting in the ordinary course of their business as such a broker or agent.

10.  
The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself constitute either company a permanent establishment of the other.

11.  
The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph 7 of Article 11 and paragraph 5 of Article 12 whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of a Contracting State, has a permanent establishment in a Contracting State.




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