ATO Interpretative Decision
ATO ID 2002/874
Income Tax
International tax : Preparation Fees paid to non-resident entertainersFOI status: may be released
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This ATO ID contains references to repealed provisions, some of which may have been re-enacted or remade.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.
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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
Does the 'Entertainers Article' of the Australian Double Tax Agreements (DTAs) - as incorporated into Australian law by the various Schedules of the International Tax Agreements Act 1953- allow Australia a taxing right on payments made to visiting entertainers specifically for 'preparing' for a role, where the preparation is carried out in another country prior to the entertainer's arrival in Australia?
Decision
Yes. The 'Entertainers Article' provides a taxing right in circumstances where a payment is made to entertainers exclusively or predominantly for them to prepare for a performance in Australia and the payment is conditional upon them attending and performing in Australia.
Facts
Various non-resident entertainers such as opera singers, musicians, conductors and film actors are regularly engaged by Australian promoters such as opera companies, symphony orchestra companies, or film producers to perform in Australia. The contracts or negotiations to engage those entertainers are usually arranged up to two years prior to the actual date of performance in Australia.
The fees which are negotiated in consideration of the entertainer's engagement, include payments made to the entertainer specifically to prepare for a part or a role in Australia, even though the preparation may be carried out in another country prior to the entertainer's arrival in Australia.
This payment (so called 'preparation fee') is often calculated as a percentage of the gross payment for the Australian engagement. The percentage can vary according to the entertainer's stature and demand in the industry.
The preparation is exclusively or predominantly for the purposes of the performance or entertainment activities in Australia. The payment of the preparation fee is conditional upon the actual performance taking place.
Reasons for decision
Australia's DTAs are international agreements that have been negotiated between Australia and other countries. The primary role of a DTA is to avoid double taxation. One mechanism for doing this is to distribute or allocate taxing rights between those countries that are parties to the DTA.
The Article in DTAs relevant to the taxation of visiting entertainers is the 'Entertainers Article'. The following example from Article 17 of the Australia/Vietnam DTA is typical of most 'Entertainers Article' in Australian DTAs:
'(1)...income
derived
by entertainers (such as theatrical, motion picture, radio or television artistes and musicians and athletes) from their personal
activities
as such may be taxed in the Contracting State in which these activities are
exercised
.'
[Emphasis added]
The term 'derived' in this context is a broad term that gives the 'Entertainers Article' coverage beyond merely fees for actual appearances.
If the payment for the preparation is made exclusively for the purposes of the performance or other entertainment activities in Australia, those fees constitute part of the entertainer's assessable income derived from those activities.
It is not important that the preparation is carried out in a country other than Australia as there is a direct link between the performance and the income. Where the entertainment activities to which the preparation relates are exercised in Australia, preparation fees for those activities are income 'derived' from the activities exercised in Australia within the meaning of the 'Entertainers Article'.
The fact that the preparation fees are paid on the condition that the primary activities are exercised in Australia, demonstrates that the fees are derived from, and integrally connected with, the activities exercised in Australia and that those activities are the real source of the income.
Legislative References:
International Tax Agreements Act 1953
Schedule 38, Article 17
Keywords
Entertainers
Prepayments
Double tax agreements
Date reviewed: 23 June 2016
ISSN: 1445-2782