BILLS DIGEST NO. 22, 2014–15              1 September 2014

International Tax Agreements Amendment Bill 2014

Bernard Pulle
Economics Section

Date introduced: 17 July 2014

House:  House of Representatives

Portfolio: Treasury

Commencement:  This Act commences on the day it receives the Royal Assent.

The entry into force of the Swiss Convention in four stages in Australia is set out in the key provisions section of this Bills Digest.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose of the Bill

The purpose of the International Tax Agreements Amendment Bill 2014 (the Bill) is to make the following amendments to the International Tax Agreements Act 1953 (the Agreements Act 1953):

•       the amendments in Part 1 of Schedule 1 give effect in Australian law to the Convention between Australia and the Swiss Confederation for the Avoidance of Double Taxation with Respect to Taxes on Income and its Protocol (the Swiss Convention) which was signed in Sydney on 30 July 2013. The Swiss Convention is a revision of and replaces the Agreement between Australia and Switzerland for the Avoidance of Double Taxation with respect to Taxes on Income and Protocol (the Swiss 1980 agreement) which was done in Canberra on 28 February 1980 and entered into force on 13 February 1981 and

•       the amendments in Part 2 of Schedule 1 make a number of minor amendments.

Background

General purpose of bilateral tax agreements or double tax agreements

‘The imposition of comparable taxes in two (or more) states on the same taxpayer in respect of the same subject matter and for identical periods – has harmful effects on the international exchange of goods and services and cross-border movements of capital, technology and persons.’[1]

A tax treaty between two countries deals with the administration of taxation when the domestic tax laws of the two countries would seem to apply simultaneously to a particular issue or taxpayer (for example, when a taxpayer resident in one country derives income from sources in the other country). Tax treaties typically set out a uniform basis for treatment of the most common issues that arise in the field of international double taxation. For example, they allocate the bases and extent of taxing rights to which each of the two states may tax income (that is, setting out the tax treatment for different classes of income and capital, and determining whether the state is a source state or residence state for the purpose of allocating taxing rights). They would also include mutual agreement procedures for eliminating double taxation and resolving conflicts of interpretation of the convention.[2]

Australia has presently 44 bilateral tax agreements, generally referred to as double tax agreements (DTAs) or double tax conventions (DTCs), and their purpose is to facilitate trade and investments between Australia and each of the countries who are parties to these agreements. This is achieved by relieving double taxation of income which may become taxable in each country.

Information sharing is integral to the effective functioning of tax administrations cooperating with each other. Another significant purpose served by DTAs is that of minimising tax avoidance and tax evasion because they provide for the exchange of tax information between the Australian Taxation Office (ATO) and the revenue authority of the country who is a party to a Double Tax Agreement (DTA).

DTAs prevent the same income being taxed more than once. The reduced tax rate that applies under a tax treaty only applies if the recipient of the dividend, interest or royalty is both:

•       a resident of the particular tax treaty country and

•       beneficially entitled to that income.

A foreign resident can be an individual, company, partnership, trust or super fund.[3]

The Australian Government Treasury (the Treasury) website Tax Treaties includes a Tax Treaties Table with links to the 44 DTAs.[4]

Tax information exchange agreements with Australia (TIEAs)

Apart from tax treaties, Australia has also negotiated specific ‘Tax information exchange agreements’ with a number of countries.[5] Once in force, these agreements enable the countries concerned to be removed from the list of ‘tax havens’ maintained by the ATO.

Briefly, a tax haven is a country with a secretive tax or financial system that has minimal or low taxes for non-residents. Tax havens may be used for the avoidance of Australian tax, for example, by diverting income to an entity in a haven that is not taxable in Australia, or for outright tax evasion.

Where are the tax havens?

The US Congressional Research Service publication Tax Havens: International Tax Avoidance and Evasion is a very informative research paper on various aspects of tax havens and international tax avoidance and tax evasion by individuals and multinationals.[6]

It traces the attempts to make lists of tax havens at pages three to eight and sets out in Table 1 at page four the names of 50 countries listed on various tax haven lists in January 2013.

Apart from those countries identified as tax havens in Table 1 there are other countries referred to in the research paper titled Other jurisdictions with tax haven characteristics.

These jurisdictions include major countries such as the United States, the UK, the Netherlands, Denmark, Hungary, Iceland, Israel, Portugal, and Canada. Attention has also been directed at three states in the United States: Delaware, Nevada, and Wyoming. Finally, there are a number of smaller countries or areas in countries, such as Campione d’Italia, an Italian town located within Switzerland, that have been characterised as tax havens.[7]

Additional benefits agreements (ABAs)

Australia has also entered into Additional Benefits Agreements (ABAs) with certain countries listed in the Table of TIEAs and they are indicated in that Table.

ABAs allocate taxing rights between countries and are a limited version of a comprehensive DTA, they are additional to the TIEAs which have also been signed with these countries. ABAs help to prevent double taxation by allocating the taxing rights over certain income of pensioners, students and government employees who are residents of Australia, the Isle of Man, Jersey or the British Virgin Islands.[8]

Ratification by Australia of the OECD Convention on Mutual Administrative Assistance in Tax Matters and G20 initiatives

The OECD Convention on Mutual Administrative Assistance in Tax Matters (OECD Tax Convention) was developed jointly by the OECD and the Council of Europe in 1988 and amended by Protocol in 2010. The Convention is the most comprehensive multilateral treaty for all forms of tax cooperation to tackle tax evasion and avoidance, a top priority for all countries.[9] The Convention is also significant because it may also further other law enforcement purposes such as fighting corruption and money laundering.[10] ‘The OECD Tax Convention was amended to respond to the call of the G20 at its April 2009 London Summit to align it to the international standard on exchange of information on request and to open it to all countries. The amended Convention was opened for signature on 1 June 2011.’ [11] The amended OECD Tax Convention seeks to strengthen cooperation among state parties providing for all possible forms of administrative co-operation between states in the assessment and collection of taxes, in particular with a view to combating tax avoidance and evasion. This co-operation ranges from exchange of information, including express provisions on exchange of information (on request, spontaneous and automatic), assistance in recovery of foreign tax claims, the service of documents and the facilitation of joint audits.

The Swiss Convention broadly follows the OECD Tax Convention and, in doing so, broadly reflects current Australian and international tax policy settings. Australia ratified the OECD Tax Convention effective from 1 December 2012.[12] The OECD Tax Convention extends beyond the countries with which Australia has DTAs. Switzerland also signed the OECD Tax Convention on 15 October 2013 but has not as yet deposited the instrument of ratification.

The G20 Leaders Summit in September 2013 reiterated the call on all countries to join the OECD Tax Convention without further delay.

Currently over 60 countries have signed the Convention and it has been extended to over ten jurisdictions (Chart of Signatures - please scroll down to see the full list of countries).[13] The Convention has now taken on increasing importance with the G20’s recent call for automatic exchange of information to become the new international tax standard of exchange of information.

Reservations under Article 30 and Denunciation under Article 31 of the Convention

Acknowledging the task in achieving progress towards widespread cooperation in tax matters between states and that not all states may be interested in engaging in the full range of cooperation provided for under the Convention, there is flexibility to lodge reservations in certain areas of cooperation. For example, some states may not wish to cooperate in the recovery of taxes. However, any reservation may be withdrawn at a later date, thus expanding a state party’s scope of cooperation.

Australia has made a number of declarations at the time it deposited the instrument of ratification on 30 August 2012 confining the application of the OECD Tax Convention to taxes imposed by the Commonwealth.[14]

Article 31 provides that any party may, at any time denounce the Convention by means of a notification addressed to one of the depositaries.

Project DO IT: disclose offshore income today

On 27 March 2014, the Commissioner of Taxation announced an initiative called Project DO IT, to allow eligible taxpayers to come forward and voluntarily disclose unreported foreign income and assets. He urged taxpayers with offshore assets to declare their interests ahead of a global crackdown on people using international tax havens. The Commissioner of Taxation added that in recent years, information sharing between countries has increased significantly. Banking data is being exchanged routinely and automatically and the G20 is promoting global tax transparency. Even countries previously thought of as tax havens, such as Switzerland and the Cayman Islands, are working with tax authorities around the world to increase financial transparency.

The Commissioner indicated the sophisticated data matching and bulk data analysis techniques adopted by the ATO and the fruitful relationships with international tax agencies and financial institutions, enabled it to detect and deal with international tax avoidance and evasion more effectively. In 2012–13, the ATO was able to raise around $480 million of adjusted tax, penalties and interest through information requests made and information received from Australia’s tax treaty partners.[15]

Key features of the new tax treaty signed with Switzerland on 30 July 2013

On 30 July 2013, the then Assistant Treasurer, Minister Assisting for Financial Services and Superannuation and Minister for Competition Policy and Consumer Affairs in a media release, Signature of Revised Tax Treaty with Switzerland, announced that Australia and Switzerland had signed a revised tax treaty, which would replace the existing treaty signed in 1980.[16] In general terms, the most significant effect of the revisions contained in this new treaty are the advances made in area of bilateral taxpayer information sharing arrangements, enabling the exchange of taxpayer information for the purpose of preventing tax evasion including access to Swiss bank information. Certain key features of the new tax treaty which were outlined in the media release are considered below with references to the Articles of the Swiss Convention and Protocol. It should be noted that this is not a post-BEPS treaty. Indeed, the bulk of the re-negotiations happened in 2011, prior to the Action Plan and key announcements under the OECD’s Base Erosion and Profit Shifting (BEPS) project.[17]

Taxes in Australia and Switzerland covered by the new tax treaty

Article 2 states that the existing taxes to which the convention will apply are in particular in Australia, income tax, the fringe benefits tax (FBT) and the resource rent taxes imposed under federal law in Australia. These taxes are referred to as ‘Australian tax’.

The taxes covered in Switzerland, referred to as ‘Swiss tax’, are the federal, cantonal and communal taxes on income (total income, earned income, income from capital, industrial and commercial profits, capital gains, and other items of income).

Introduction of a general anti-treaty abuse rule

General anti-abuse rules are no longer novel and are increasingly being applied in a treaty context. Treaty abuse rules have become a serious concern because of their impact on both Treasury (by for example, diverting resources) and taxpayers. A general anti-treaty abuse rule basically denies all treaty benefits to persons who are not bona fide residents of the treaty country. Treaty benefits will not apply if one of the principal purposes of a person in creating or assigning property or rights in respect of which income was paid, or in becoming a resident of Australia or Switzerland, was to take advantage of the Swiss treaty in order to obtain such benefits. The definition of ‘person’ now includes a trust (Article 3).

Change to the definition of permanent establishment (PE)

The significance of the term ‘permanent establishment’

Based on Article 7(1) of the Swiss Convention, the profits of an enterprise are taxable only in the state of residence unless the enterprise carries on business in the source state through a permanent establishment (PE) situated therein. In that case, only so much of the profits which are attributable to the PE are taxable by the source state. Thus terms of a PE create a threshold for a business presence which an entity may have in a country without being exposed to taxation by that country.

The expression ‘permanent establishment’ is defined in Article 5 and under paragraph 1 means a fixed place of business through which the business of an enterprise is wholly or partly carried on. The terms in paragraphs 2 to 9 cover a broad range of circumstances in which both countries can tax at source business profits derived from construction and mining profits as well as from the operation of substantial equipment. The term ‘permanent establishment’ no longer includes assembly projects which are part of construction projects.

Business profits

Paragraph 5(b) of the Protocol provides that taxing rights over business profits derived through a permanent establishment will apply to profits derived through interposed trusts. [18]

A reduction in the withholding tax rates on dividends, interest and royalties paid by Australian residents to Swiss residents

A withholding tax is a government requirement for the payer of a type of income to withhold or deduct tax from the payment, and pay that withheld amount or tax to the government. In addition to a withholding tax on employment income, many countries also require withholding tax on payments of interest or dividends. Also, many countries have additional withholding tax obligations if the recipient of the income is resident in a different country. In such circumstances withholding tax sometimes applies to royalties, rent and the sale of real estate.[19] A withholding tax serves as a tool for tackling tax evasion.

In an international context, Australia's withholding tax provisions impose a requirement to withhold and send tax to the ATO on certain prescribed payments to non-residents, including dividends, interest and royalties.

Dividends

Paragraph 1 of Article 10, subject to paragraph 8 of the Protocol, provides that dividends may be taxed in the source of the dividend country up to the following limits and exemptions:

•       five percent on the gross intercorporate dividends[20] where the beneficial owner of those dividends is, in the Australian case, a company that holds ten per cent or more of the voting power in the company which is paying the dividend; and in the case of Switzerland, holds directly at least 10 per cent of the capital in the company paying the dividends

•       15 per cent in all other cases under paragraph 2(b) of Article 10

•       zero per cent tax is payable on dividends paid to:

–      publicly listed companies, or subsidiaries thereof, or unlisted companies in certain circumstances, that hold 80 per cent or more of the paying company, under paragraph 3 of Article 10 and

–      certain entities, including complying Australian superannuation funds and tax exempt Swiss pension schemes where they have direct holdings of no more than ten per cent.

Interest

Article 11 provides that generally interest may be taxed in the source country subject to certain limits and exemptions:

•       paragraph 3 of Article 11 provides that the current ten per cent tax withholding rate for the payment of interest to a foreign resident is reduced to nil in the source country where that interest is paid to bodies exercising governmental functions and to banks exercising central banking functions; an unrelated financial institution resident in the other country; and complying Australian superannuation funds or tax exempt Swiss pension schemes and

•       ten per cent in all other cases.

Royalties

Royalty withholding tax is ordinarily imposed at the rate of 30 per cent when that royalty is paid or credited. The withholding tax rate is reduced accordingly where a double tax treaty is in force.[21]

Article 12 provides that royalties may be taxed in the source country up to five percent.

Mutual agreement procedure

Article 24 provides the procedure for resolving disputes arising from the application of the Swiss Convention.

Under paragraph 1 of Article 24, taxpayers will be able to present a case of non-compliance with the provisions of the Convention relating to taxation to the competent authority of the Contracting State where the taxpayer is resident. The case must be presented within three years from the first notification of the action resulting in taxation not in accordance with the provisions of the Swiss Convention. In the case of Australia it is the Commissioner of Taxation or an authorised representative of the Commissioner (Article 3, subparagraph (1)(g)(i))

Paragraph 5 of Article 24 gives taxpayers the option of referring unresolved tax disputes to independent arbitration.

Exchange of information

Article 25 of the Swiss Convention deals with the exchange of information between Australia and Switzerland for carrying out its provisions or for administering or enforcement of domestic laws concerning taxes of every kind imposed by each Contracting State.

The provisions for exchange of information in the Swiss Convention appear to be broader than the corresponding provisions in Article 25 of the current Swiss 1980 agreement. However subparagraphs 3a), 3b) and 3c) provide for certain situations when the state requested to provide information is not obliged to do so. The Explanatory Memorandum to the Bill states that these limitations will apply where a Contracting State:

·          it would be required to carry out administrative measures at variance with the laws and administrative practice of Australia or Switzerland;

·          such information is not obtainable under the domestic law or in the normal course of administration of Australia or Switzerland;

·          the disclosure of the information would disclose any trade, business, industrial, commercial or professional secret or trade process; or

·          the disclosure of the information would be contrary to public policy.[22]

Parliamentary Joint Standing Committee on Treaties

Report 138: treaties tabled on 11 and 12 December 2013, 20 January 2014 and referred on 15 January 2014 (Report 138) of the Joint Standing Committee on Treaties included its consideration on the Swiss Convention and Protocol at pages five to 14.[23]

The Committee supports the Convention between Australia and the Swiss Confederation for the Avoidance of Double Taxation with respect to Taxes on Income and in Recommendation 1 recommends that binding treaty action be taken.

Comment on the extent of tax evasion between Australia and Switzerland

Report 138 commented on the extent of tax evasion between Australia and Switzerland as follow:

Asked about the extent of tax evasion between Australia and Switzerland, the Australian Taxation Office (ATO) acknowledged the difficulty of placing a dollar figure on the issue but told the Committee that over 188 000 transactions took place between the two countries during the 2012-13 financial year involving over $41 billion.

Although the Australian Transaction Reports and Analysis Centre (AUSTRAC) cannot identify entity type from information reported on bank to bank funds movements, the ATO advised that of these transactions 52 547 could be attributed to 20 249 individuals and 44 481 to 7 278 companies. These transactions account for nearly $16 billion. However, no details of entities could be supplied for nearly 81 000 of the transactions, totalling over $22.5 billion. While many of these transactions are legitimate the Agreement will provide a ‘screening mechanism’ to identify those that may not be.[24]

Financial implications and costs of the Swiss Convention

The Explanatory Memorandum to the Bill states at page 3 that the financial impact is minimal.

The Joint Standing Committee on Treaties in Report 138 noted in paragraph 2.41 at page 13 that Treasury estimates that the first-round impact of the Swiss Convention would be that the revenue costs of reducing Australian withholding tax on dividends, interest and royalties will be offset by the revenue gains arising from enhanced tax system integrity. It added that the establishment of effective exchange-of-information arrangements with Switzerland is expected to discourage the use of Swiss banks to conceal untaxed income and assets.

In regard to second-round impacts Report 138 noted in paragraph 2.44 at page 14 that Treasury estimated that the reduction in withholding tax would amount to a loss of approximately $70 million and admitted that there was no provision in forward estimates to cover this loss.

Compatibility with Human Rights

The Statement of Compatibility with Human Rights can be found at pages 117 to 122 of the Explanatory Memorandum to the Bill. As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.

Key provisions

Section 3AAA(1) of the Agreements Act 1953 defines the Agreements or treaties that are captured by the legislation.[25] Because of the newly revised agreement with Switzerland, item 1 of Schedule 1 to the Bill amends subsection 3AAA(1) of the Agreements Act 1953 to repeal the current definition of ‘Swiss agreement’.

Accordingly, item 2 of Schedule 1 inserts the new definition of ‘Swiss convention’ into subsection 3AAA(1) of the Agreements Act 1953. The ‘Swiss convention’ will mean the ‘Convention between Australia and the Swiss Confederation for the Avoidance of Double Taxation with Respect to Taxes on Income’ and the protocol to that Convention, each done in Sydney on 30 July 2013.

Section 3AAB(1) of the Agreements Act 1953 provides definition for agreements which are relevant for earlier periods during which those agreements applied. Thus, item 3 of Schedule 1 moves and places the definition of ‘Swiss 1980 agreement’ into subsection 3AAB(1) of the Agreements Act 1953. The ‘Swiss 1980 agreement’ means the Agreement between Australia and Switzerland for the Avoidance of Double Taxation with Respect to Taxes on Income and the protocol to that agreement each done in Canberra on 28 February 1980.[26]

Entry into force

Article 27 of the Swiss Convention indicates how it will take effect in Australia and in Switzerland after the completion of procedures required by the law in each Contracting State.

Paragraph 2(a) of Article 27 provides that once the Convention enters into force, it will take effect in Australia in four stages. In respect of:

•       fringe benefits tax , on fringe benefits provided on or after 1 April next following entry into force

•       withholding tax on income derived by a resident of Switzerland, on income derived on or after 1 January next following entry into force

•       other Australian tax, on income, profits or gains derived in the following income year beginning 1 July next following entry into force and

•       exchange of information, paragraph 2(c) provides that it will take effect on information that relates to taxation years or business years in course on, or beginning on or after, the first day of January of the calendar year next following entry into force.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.

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[1].              Organisation for Economic Co-operation and Development (OECD), ‘OECD Model Tax Convention on Income and on Capital - an overview of available products’, OECD website, accessed 25 August 2014.

[2].              OECD – Centre for Tax Policy and Administration, Manual on Effective Mutual Agreement Procedures (MEMAP) , February 2007, pp. 7–8, accessed 1 September 2014.

[3].              Australian Taxation Office (ATO), ‘International tax for individuals’, ATO website, accessed 27 August 2014.

[4].              Treasury, ‘Tax treaties’, Treasury website, accessed 21 August 2014.

[5].              Treasury, ‘Tax information exchange agreements’, Treasury website, accessed 21 August 2014.

[6].              US Congressional Research Service, CRS Report for Congress, Tax havens: international tax avoidance and evasion, (report prepared by JG Gravelle), 23 January 2013, accessed 21 August 2014.

[7].              Ibid., p. 6.

[8].              N Sherry (Assistant Treasurer), Australia signs additional benefits agreements with a further three jurisdictions, media release, 21 May 2010,

[9].              OECD, Exchange of information: Convention on Mutual Administrative Assistance in Tax Matters, accessed 8 August 2014.

[10].              OECD, The Multilateral Convention on Mutual Administrative Assistance in Tax Matters: amended by the 2010 Protocol, 2011, p. 3, accessed 8 August 2014.

[11].              OECD website, accessed 21 August 2014.

[12].              Convention on Mutual Administrative Assistance in Tax Matters, text amended by the provisions of the Protocol amending the Convention on Mutual Administrative Assistance in Tax Matters, which entered into force on 1 June 2011, accessed 8 August 2014.

[13].              Ibid., Exchange of Information, accessed 1 September 2014.

[14].              Council of Europe, Treaty Office, List of declarations made with respect to treaty no. 127, Convention on Mutual Administrative Assistance in Tax Matters, accessed 1 September 2014.

[15].              Australian Taxation Office (ATO), ‘Project DO IT: disclose offshore income today’, ATO website, accessed 21 August 2014.

[16].              D Bradbury (then Assistant Treasurer, Minister Assisting for Financial Services and Superannuation and Minister for Competition Policy and Consumer Affairs), Signature of revised tax treaty with Switzerland, media release, 30 July 2013, accessed 6 August 2014.

[17].              At the request of the G20, the OECD published its Action Plan on Base Erosion and Profit Shifting (Action Plan) in July 2013. The BEPS Action Plan includes 15 actions to address BEPS in a comprehensive manner and sets deadlines to implement these actions.

[18].              An interposed trust is one where a decision is made by the trust to make an entity (a company, partnership or trust) a member of the family group of the individual specified in a family trust election.

[19].              The liability to withhold tax generally arises when the respective dividend, interest or royalty amount has been paid, credited or otherwise dealt with. The mere accruing of interest or royalties will not necessarily create a withholding tax liability. However, where the amount is credited to a loan account or another account such that the recipient has legal claim over the monies, a withholding tax liability will arise.

[20].              Intercorporate dividend refers to the share of profits paid from one company to another in an inter-corporate relationship in the form of a dividend.

[21].              ATO, ‘International tax for individuals’, op. cit.

[22].              Explanatory Memorandum, International Tax Agreements Amendment Bill 2014, Article 25 – exchange of information, paragraph 1.317, p. 109, accessed 21 August 2014.

[23].              Joint Standing Committee on Treaties, Report 138: treaties tabled on 11 and 12 December 2013, 20 January 2014 and referred on 15 January 2014, paragraph 2.20, March 2014, pp. 5–14, accessed 21 August 2014.

[24].              Ibid., pp. 9–10.

[25].              International Tax Agreements Act 1953 , accessed 1 September 2014.

[26].              Note 1 to the definition of ‘Swiss 1980 agreement’ states that the text of this agreement and protocol is set out in Australian Treaty Series 1981 No. 5 ([1981] ATS 5).