Edited version of private advice

Authorisation Number: 1051616047425

Date of advice: 2 December 2019

Ruling

Subject: Foreign employment income - international traffic

Question

Is the income derived from your foreign employment assessable in Australia?

Answer

No.

This ruling applies for the following periods:

Year ended 30 June 20XX

Year ended 30 June 20XX

Year ending 30 June 20XX

Year ending 30 June 20XX

Year ending 30 June 20XX

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

You are currently employed with an enterprise of Country X.

You pay tax in Country X on your employment income.

You are a resident of Australia for tax purposes and you will remain so during the term of your employment.

You currently operate in international traffic and will soon also operate in domestic traffic in Country X.

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 6-5

International Tax Agreements Act 1953

Reasons for decision

Section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997) provides that where you are a resident of Australia for taxation purposes, your assessable income includes income gained from all sources, whether in or out of Australia.

However, in determining liability to tax on the foreign source income of an Australian resident, it is necessary to consider not only the domestic income tax laws but also any applicable double tax agreement.

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 Country X Agreement is listed in section 5 of the Agreements Act.

The Country X Agreement operates to avoid the double taxation of income received by residents of Australia and Country X.

Article Z of the Country X agreement provides that salaries and wages derived by an Australian resident individual in respect of employment carried out in Country X may be taxed in both Australia and Country X.

Notwithstanding the above, a paragraph of Article Z provides Country X with sole taxing rights on remuneration derived in respect of an employment exercised aboard a ship or aircraft operated by an enterprise of Country X in international traffic.

Taxation Ruling TR 2001/13 Income tax: Interpreting Australia's Double Tax Agreements states that it has been accepted by the courts that the OECD Model Tax Convention and Commentaries provides appropriate guidance when interpreting the terms used in double tax agreements.

Paragraph 5 of the Commentary on Article 3 of the OECD Model Tax Convention on Income and on Capital (2017) states that the definition of the term 'international traffic' is based on the principle set forth in paragraph 1 of Article 8 that the right to tax profits of an enterprise of a contracting state from the operation of ships or aircraft in international traffic resides only in that state in view of the special nature of the international traffic business.

The Commentary on Article 3 explains further that voyages carried out by an enterprise of a contracting state that include a domestic leg in that state, or are fully domestic within that state, will also be considered to be operated in international traffic:

6. The definition of the term "international traffic" is broader than is normally understood. The broader definition is intended to preserve for the State of the enterprise the right to tax purely domestic traffic as well as international traffic between third States, and to allow the other Contracting State to tax traffic solely within its borders.............

6.2 A ship or aircraft is operated solely between places in a State in relation to a particular voyage if the place of departure and the place of arrival of the ship or aircraft are both in that State. However, the definition applies where the journey of a ship or aircraft between places in a State forms part of a longer voyage of that ship or aircraft involving a place of departure or a place of arrival which is outside that State. For example, where, as part of the same voyage, an aircraft first flies between a place in one Contracting State to a place in the other Contracting State and then continues to another destination also located in that other Contracting State, the first and second legs of that trip will both be part of a voyage regarded as falling within the definition of "international traffic".

In your case, Article Z will apply so that the employment income you derive from the enterprise of Country X will not be assessable in Australia.