| Disclaimer This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law. You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4. |
Edited version of your written advice
Authorisation Number: 1012837294965
Date of advice: 8 July 2015
Ruling
Subject: Loss or earnings payment from Australia - foreign resident - Country X
Question 1
Is the loss of earnings (LOE) lump sum in arrears payment you received assessable income in Australia?
Answer
No
This ruling applies for the following periods:
Year ending 30 June 2014
The scheme commences on:
1 July 2013
Relevant facts and circumstances
You are a resident of Country X.
You were employed in your own business in Country X.
You came to Australia on a visiting visa and were involved in accident in the relevant financial year.
You submitted a claim for loss of earnings to the Transport Accident Commission (TAC)
TAC accepted the LOE claim.
TAC paid an amount as lump sum in arrears for LOE.
Relevant legislative provisions
Income Tax Assessment Act 1997 Subsection 6-5(3)
International Tax Agreements Act 1953, Section 4
International Tax Agreements Act Section 5
International Tax Agreements Act, Artilcle 18
International Tax Agreements Act, Article 3 (3)
Reasons for decision
Subsection 6-5(3) of the Income Tax Assessment Act 1997 (ITAA 1997) provides that the assessable income of a foreign resident includes ordinary income derived directly or indirectly from Australian sources.
The loss of earnings payments are ordinary income for the purpose of subsection 6-5(3) of the ITAA 1997.
In determining liability to Australian tax in respect of Australian sourced income received by a foreign resident, it is necessary to consider not only the income tax laws but also any applicable tax treaty contained in the International Tax Agreements Act 1953 (the Agreements Act).
Section 4 of the Agreements Act incorporates the Act with the Income Tax Assessment Act 1936 (ITAA 1936) and the ITAA 1997 so that all three Acts are read as one.
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 Country X agreement is listed in section 5 of the Agreements Act. The Country X agreement is located on the Austlii website (www.austlii.edu.au) in the Australian Treaties Series database. It operates to avoid the double taxation of income received by residents of Australia and Country X.
Article Y of the Country X agreement provides that pensions paid to a resident of one of the Contracting State shall be taxable only in that State. Therefore, pensions paid from Australia to a resident of Country X shall be taxable only in Country X.
Article Z of the Country X agreement provides that any term not defined in the Agreement shall, unless the context otherwise requires, have the meaning which it has under the laws of that Contracting State relating to the taxes to which this Agreement applies. The term 'pension' is not defined in the Country X agreement or in Australia's domestic taxation law.
Taxation Determination TD 93/151 discusses the meaning of a 'pension' for tax treaty purposes. Paragraph 1 of TD 93/151 states that a 'pension' is defined in The Macquarie Dictionary, as: '1. a fixed periodical payment made in consideration of past services, injury or loss sustained, merit, poverty etc. and 2. an allowance or annuity.'
The meaning of the term 'pension' was also considered by Hill J. in the Federal Court in Tubemakers of Australia Ltd v. Federal Commissioner of Taxation 93 ATC 4207; (1993) 25 ATR 183 (Tubemakers). His Honour concluded that the essential characteristic of a 'pension' is periodic payments.
The loss of earnings payments made to you under the Transport Accident Act 1986 (TAA 1986) have the essential characteristic of a 'pension' as per Hill J. in Tubemakers and fall within the Macquarie Dictionary definition of 'pension' as they are fixed periodic payments made in consideration of injury or loss sustained.
An amount made to you as a lump sum representing arrears of unpaid periodic loss of earnings under the TAA 1986 is also a 'pension' for the purposes of the Pension Article of the Country X agreement. This is because the lump sum amount represents the aggregate of past loss of earnings payments that should have been made on a periodic basis over a particular period of time.
Therefore, the Pension Article applies to give Country X, as the country of your residence, sole taxing rights over the payment received by you from the TAC.