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Edited version of your written advice
Authorisation Number: 1012737953918
Ruling
Subject: Assessability of foreign pension
Question and answer
Is the pension received by you from the overseas country assessable income in Australia?
Yes.
This ruling applies for the following period:
Year ending 30 June 2015
Year ending 30 June 2016
Year ending 30 June 2017
Year ending 30 June 2018
Year ending 30 June 2019
The scheme commenced on:
1 July 2014
Relevant facts and circumstances
You are a resident of Australia for taxation purposes.
You are a citizen of the overseas country.
You receive a pension from the overseas government.
Relevant legislative provisions:
Income Tax Assessment Act 1997 Subsection 6-5(2)
Income Tax Assessment Act 1997 Subsection 52-10(1A)
International Tax Agreements Act 1953 Section 4
International Tax Agreements Act 1953 Schedule 1 Article 18
Reasons for decision
Subsection 6-5(2) of the Income Tax Assessment Act 1997 (ITAA 1997) provides that the assessable income of a resident taxpayer includes ordinary income derived directly or indirectly from all sources, whether in or out of Australia, during the income year.
Pension income is ordinary income assessable under subsection 6-5(2) of the ITAA 1997.
However, subsection 6-15(2) of the ITAA 1997 provides that if an amount is exempt income then it is not assessable income.
Section 6-20 of the ITAA 1997 provides that an amount of ordinary income is exempt income if it is made exempt from income tax by a provision of the ITAA 1997 or another Commonwealth law.
In determining your liability to pay tax in Australia it is necessary to consider not only the domestic income tax laws but also any applicable double tax agreements.
Section 4 of the International Tax Agreements Act 1953 (Agreements Act) incorporates that Act with the Income Tax Assessment Act 1936 (ITAA 1936) and the ITAA 1997 so that all three Acts are read as one. The Agreements Act overrides both the ITAA 1936 and ITAA 1997 where there are inconsistent provisions (except in some limited situations).
Section 5 of the Agreements Act states that, subject to the provisions of the Agreements Act, any provision in an Agreement listed in section 5 has the force of law. The overseas Agreement is listed in section 5 of the Agreements Act.
The agreement between Australia and the overseas country operates to avoid the double taxation of income received by residents of Australia and the overseas country.
Article XX of the overseas agreement considers the tax treatment of pensions and annuities.
(1) Pensions, including pensions provided under the provisions of a public social security system, but not including pensions to which Article 19 applies, paid to a resident of one of the States, and annuities so paid, shall be taxable only in that State.
This means Australia has the sole taxing rights as you are a resident of Australia for taxation purposes.
As the pension is assessable income and not made exempt or non-assessable income it must be included in your tax return as assessable income.
While you specified the end date of the ruling to be 2027 the Commissioner will not rule for an indefinite time in this case.
As there may be changes to Australian income tax law or a change in the Double Tax agreement the ruling is made until 30 June 2019.
If there are no relevant changes to the law the pension will remain assessable in Australia after that date.
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