ATO Interpretative Decision

ATO ID 2003/855 (Withdrawn)

Income Tax

• This ATO ID is withdrawn from the database because it contains references to the tax treaty between Australia and the United Kingdom that was replaced with a new tax treaty effective from 17 December 2003. Despite its withdrawal from the database, this ATO ID continues to be a precedential view in respect of decisions for income years up to, and including, the 2003-04 income year.
  This document incorporates revisions made since original publication. View its history and amending notices, if applicable.

Issue

Is the Australian sourced interest income received by a United Kingdom (UK) resident taxpayer assessable under subsection 6-5(3) of the Income Tax Assessment Act 1997 (ITAA 1997)?

Decision

No. The Australian sourced interest income received by a UK resident taxpayer is not assessable under subsection 6-5(3) of the ITAA 1997 as it is exempt from tax under section 128D of the Income Tax Assessment Act 1936 (ITAA 1936).

Facts

The taxpayer is a UK resident and a non-resident of Australia for income tax purposes.

The taxpayer derives interest income from Australian sources.

Reasons for Decision

Subsection 6-5(3) of the ITAA 1997 provides that the assessable of income of a non-resident taxpayer includes ordinary income derived directly or indirectly from Australian sources, as well as other ordinary income included by a provision on a basis other than having an Australian source.

Interest is ordinary income for the purposes of subsection 6-5(3) of the ITAA 1997.

Section 6-15 of the ITAA 1997 provides that if an amount is exempt income then it is not assessable income. An amount is exempt income if it is made exempt from income tax by a provision of the ITAA 1997 or another Commonwealth law (subsection 6-20(1) of the ITAA 1997).

Section 11-10 of the ITAA 1997 lists provisions about exempt income. Included in this list is section 128D of the ITAA 1936.

Section 128D of the ITAA 1936 provides that interest upon which withholding tax is payable shall not be included in assessable income.

A non-resident is liable for withholding tax on interest under subsection 128B(2) of the ITAA 1936.

Section 7 of the Income Tax (Dividends, Interest and Royalties Withholding Tax) Act 1974 provides that the rate of withholding tax on interest paid to non residents is generally 10%.

The taxpayer is a resident of the UK, a country with which Australia has entered into a double tax agreement. Therefore, the double tax agreement between Australia and the UK and the protocol to that agreement (the UK Agreement) contained in Schedules 1 and 1A to the International Tax Agreements Act 1953 (the Agreements Act) must be considered in determining whether the interest income derived by the taxpayer is taxable in Australia.

Sections 5 and 5A of the Agreements Act give the UK Agreement the force of law in Australia.

Section 4 of the Agreements Act provides that the ITAA 1936 and the ITAA 1997 must be read as one with the Agreements Act. The Agreements Act effectively overrides the ITAA 1936 and ITAA 1997 where there are inconsistent provisions (except for some limited situations).

Article 9(2) of the UK Agreement provides that income tax on interest derived and beneficially owned by a UK resident shall not exceed 10% of the gross amount of interest.

The taxpayer will liable for 10% withholding tax on the gross amount of interest derived from Australia.

The interest received by the non resident taxpayer is not assessable under subsection 6-5(3) of the ITAA 1936 as section 128D of the ITAA 1936 applies.

Accordingly, the interest received from Australian sources will not form part of the taxpayer's assessable income under subsection 6-5(3) of the ITAA 1997.

Year of income:  Year ended 30 June 2003

Legislative References:
Income Tax Assessment Act 1936
   subsection 128B(2)
   section 128D

Related ATO Interpretative Decisions
ATO ID 2003/854

Keywords
Double tax agreements
Exempt income
Foreign income
Interest income
United Kingdom

Business Line:  Public Groups and International

Date of publication:  26 September 2003

ISSN: 1445-2782