UNITED STATES TREASURY DEPARTMENT TECHNICAL EXPLANATION OF THE CONVENTION BETWEEN THE GOVERNMENT OF THE UNITED STATES OF AMERICA AND THE GOVERNMENT OF AUSTRALIA FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME（一） 　　GENERAL EFFECTIVE DATE UNDER ARTICLE 28: 1 DECEMBER 1983 　　This Convention, signed at Sydney, Australia on August 6, 1982, was negotiated on the basis of the U.S. Model Convention for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with Respect to Taxes on Income and Capital, published in May 1977, the revised U.S. Model published in draft form in June 1981 (also referred to as the "U.S. Model"), and the Model Double Taxation Convention on Income and Capital published by the Organization for Economic Cooperation and Development (OECD) in January 1977. 　　The technical explanation is an official guide to the Convention. It reflects policies behind particular Convention provisions, as well as understandings reached with respect to the interpretation and application of the Convention. TABLE OF ARTICLES Article 1---------------------------------Personal Scope Article 2---------------------------------Taxes Covered Article 3---------------------------------General Definitions Article 4---------------------------------Residence Article 5---------------------------------Permanent Establishment Article 6---------------------------------Income from Real Property Article 7---------------------------------Business Profits Article 8---------------------------------Shipping and Air Transport Article 9---------------------------------Associated Enterprises Article 10--------------------------------Dividends Article 11--------------------------------Interest Article 12--------------------------------Royalties Article 13--------------------------------Alienation of Property Article 14--------------------------------Independent Personal Services Article 15--------------------------------Dependent Personal Services Article 16--------------------------------Limitation on Benefits Article 17--------------------------------Entertainers Article 18--------------------------------Pensions, Annuities, Alimony and Child Support Article 19--------------------------------Governmental Remuneration Article 20--------------------------------Students Article 21--------------------------------Income Not Expressly Mentioned Article 22--------------------------------Relief from Double Taxation Article 23--------------------------------Non-Discrimination Article 24--------------------------------Mutual Agreement Procedure Article 25--------------------------------Exchange of Information Article 26--------------------------------Diplomatic and Consular Privileges Article 27--------------------------------Miscellaneous Article 28--------------------------------Entry into Force Article 29--------------------------------Termination ARTICLE 1 Personal Scope 　　This Article identifies the persons who come within the scope of the Convention (also referred to as "the Treaty") and establishes the relationship between it and domestic law. Paragraph 1 states that, except where the Convention specifically provides otherwise, the Convention applies to residents of the United States and/or Australia. Certain provisions of the Convention may apply to residents of third counties, for example, paragraph 5 of Article 10 (Dividends), paragraph 6 of Article 11 (Interest), and Article 25 (Exchange of Information). The term "resident" is defined in Article 4 (Residence). Paragraph 2 provides that the Convention may not increase tax above the liability that would result under domestic law or under other agreements between the Contracting States. If domestic law provides a more favorable treatment than the Convention, the taxpayer may apply the provisions of domestic law. For example, if certain interest income derived by nonresidents is exempt from tax by statute, but the Treaty authorizes a tax at source of not more than 10 percent, the statutory exemption will apply. A taxpayer, however, may not make inconsistent choices between the rules of the Internal Revenue Code and the Convention rules. 　　Paragraph 3 contains the traditional "saving clause" under which each Contracting State reserved the right to tax its residents, as defined in Article 4 (Residence), as if the Convention had not come into effect. The two States also reserve the right so to tax their citizens, individuals electing under their respective domestic laws to be taxed as residents, and in the case of the United States, former citizens whose loss of citizenship had as one of its principal purposes the avoidance of tax. Such former citizens are taxable in accordance with section 877 of the Internal Revenue Code for 10 years following the loss of citizenship. 　　Paragraph 4 sets forth certain exceptions to the application of the saving clause where other provisions of the Convention present overriding policies. The saving clause does not override the benefits provided under paragraph 2 of Article 9 (Associated Enterprises), relating to correlative adjustments of tax liability, or the benefits of paragraphs 2 or 6 of Article 18 (Pensions, Annuities, Alimony and Child Support), relating to social security payments, alimony and child support. Social security payments and similar public pensions paid by Australia and alimony, child support and similar maintenance payments arising in Australia are taxable only by Australia even though the recipient may be a resident of the United States; similarly, social security payments by Australia to a citizen of the United States, wherever resident, are taxable only in Australia. The benefits provided in Articles 22 (Relief from Double Taxation), 23 (Non- Discrimination), and 24 (Mutual Agreement Procedure), and the source rules of paragraph 1 of Article 27 (Miscellaneous) are also available to residents and citizens of the Contracting States, notwithstanding the saving clause. In some cases, the saving clause overrides benefits otherwise conferred by the United States on citizens or persons having immigrant status in the United States and benefits otherwise conferred by Australia on citizens or persons ordinarily resident in Australia, but does not override those benefits when conferred on other residents of the respective States. This second category of exceptions to the saving clause concerns the benefits provided under Article 19 (Governmental Remuneration), 20 (Students) and 26 (Diplomatic and Consular Privileges). The term "immigrant status" means a person admitted to the United States as a permanent resident under U.S. immigration laws (i.e., holding a "green card"). ARTICLE 2 Taxes Covered 　　Paragraph 1 enumerates the existing taxes to which the Convention applies in each Contracting State. 　　In the United States these are the Federal income taxes imposed by the Internal Revenue Code, but excluding the accumulated earnings tax and the personal holding company tax. Social security taxes and excise taxes, such as those on private foundations and foreign insurers, are not covered by the Convention. 　　In Australia the Convention covers the income tax, including the additional tax on undistributed income of private (closely held) companies. 　　Paragraph 2 provides that taxes enacted after the date of signature of the Convention (August 6, 1982) are also covered if they are substantially similar to the taxes referred to in paragraph 1. The competent authorities agree to notify each other at the end of each calendar year of substantial changes in their income tax laws or in the official interpretation of those laws or of the Convention. ARTICLE 3 General Definitions Paragraph 1 defines some of the principal terms used throughout the Convention. Unless the context otherwise requires, the terms defined in this paragraph have a uniform meaning throughout. A number of other important terms are defined in other Treaty articles. For example, the term "resident" is defined in Article 4 (Residence), the term "permanent establishment" is defined in Article 5 (Permanent Establishment), and the term "royalties" is defined in Article 12 (Royalties). 　　The definitions of the terms "person", "company", "enterprise of a Contracting State", and "international traffic" are similar to the definitions in the U.S. Model. 　　The "competent authority" for the United States is the Secretary of the Treasury or his delegate, and for Australia the Commissioner of Taxation or his authorized representative. 　　The definitions of a United States corporation and an Australian corporation, respectively, exclude corporations which under the laws of the Contracting States are residents of both States. A corporation created and organized under the laws of a state of the United States is considered by the United States to be a United States corporation. Such a corporation could also be considered by Australia to be an Australian corporation if it is managed and controlled in Australia or if it does business there and its voting power is controlled by Australian resident shareholders. Typically, a corporation can avoid being a dual resident. If such a situation does arise, the dual resident corporation is not considered a resident of either country for purposes of the Treaty and is therefore not entitled to benefits granted by either State under the Treaty to residents of the other State. The terms "United States" and "Australia" are defined to include the continental shelf areas of the two countries with respect to exploration and exploitation of their natural resources. For the United States, the definition of the continental shelf is interpreted in accordance with section 638 of the Internal Revenue Code and the regulations thereunder. The term "United States" does not include Puerto Rico, the Virgin Islands, Guam, or any other United States possession. The term "Australia" does include the Territories of Norfolk Island, Christmas Island, the Cocos Islands, Ashmore and Cartier Islands and the Coral Sea Islands; however, see also the discussion of paragraph 1(a)(iii) of Article 4 (Residence). 　　Definitions are provided for the terms "Contracting State," "State," "United States tax,''''Australian tax,'' and "resident of one of the Contracting States." The covered taxes do not include penalty or interest charges. For example, the ceiling rate of tax at source of 15 percent on dividends under Article 10 (Dividends) does not include any penalty or interest charge for late payment of tax. 　　Paragraph 2 provides that terms not defined in the Convention shall have the meaning which they have under the laws of the Contracting State concerning the taxes to which the Convention applies, unless the context of the Convention requires a different interpretation. Under the terms of Article 24 (Mutual Agreement Procedure), the competent authorities may agree on a common definition of an otherwise undefined term. The term "context" includes the purpose and background of the provision in which the term appears. An agreement by the competent authorities with respect to the meaning of a term used in the Convention would supersede conflicting meanings in the domestic laws of the Contracting States. ARTICLE 4 Residence 　　This Article sets forth rules for determining the residence of individuals, corporations,and other persons for purposes of the Convention. A definition of residence is important because, for the most part, only residents of the Contracting States may claim benefits under the Convention. The Convention definition is of course, exclusively for purposes of the Convention. Paragraph 1 of this Article describes those persons who, for purposes of the Convention, are residents of Australia or the United States. 　　Subparagraph (a) provides that a resident of Australia means an Australian corporation and any other person (except a company that is not an Australian corporation) that is resident in Australia for purposes of its tax. However, if such a person is subject to Australian tax on income from Australian sources (but not on income from U.S. sources or other sources outside Australia), that person is not a resident of Australia for purposes of this Convention except to the extent that the income is subject to tax in Australia as the income of a resident or is exempt from Australian tax solely because it is subject to U.S. tax. This provision excludes residents of certain territories included within the definition of Australia in paragraph 1(k) of Article 3 (General Definitions) from claiming any Treaty reductions in United States tax on United States source income under the Treaty; although subject to Australian tax on their Australian source income, such persons are not subject to Australian tax on their United States source income and the reason is not solely because they are subject to U.S. tax. Similarly, a partnership, estate or trust is a resident of Australia for purposes of the Convention only to the extent that the income it derives is subject to Australian tax as the income of a resident either at the level of the partnership, estate or trust or in the hands of a partner or beneficiary, or, if that income is exempt from Australian tax under the Treaty, it is exempt solely because it is subject to U.S. tax. However, an Australian trust will be considered a resident of Australia, notwithstanding that its income is exempt from Australian tax, if the trust qualifies as a tax exempt organization under Australian law because it is established for public charitable purposes or scientific research. Thus, a dividend paid by a U.S. corporation to an Australian partnership comprised equally of an Australian resident partner and an Indonesian resident partner would be treated as paid one half to an Australian resident and that half would enjoy the reduced rate of U.S. tax provided for in Article 10 (Dividends). 　　Subparagraph (b) provides that a resident of the United States means a U.S. corporation and any other person resident in the United States for purposes of its tax. However, a partnership, estate or trust is a resident of the United States for purposes of the Convention only to the extent that the income it derives either is subject to U.S. tax as the income of a resident (either at the level of the entity or in the hands of a partner or beneficiary), or is exempt from U.S. tax for reasons other than the recipient's not being a U.S. person. Thus, a U.S. person that qualifies as a tax-exempt organization under U.S. law qualifies as a resident, and a recipient of tax-exempt income does not lose its status as a resident with respect to that income. The rule in paragraph 1 that tax-exempt organizations and recipients of tax-exempt income qualify as residents, notwithstanding that the income they derive is not subject to tax, is meant to be a clarification and not to imply that such tax-exempt organizations and other persons are not entitled to Treaty benefits under conventions which do not include this or similar language. 　　Paragraph 2 provides a series of tie-breakers for assigning a single residence to an individual who, by the criteria of paragraph 1, would be a resident of both countries. The first test is where the individual has a permanent home. If that test is inconclusive because the individual has a permanent home in both countries or in neither of them, the second test is where he has his habitual abode. If that test also fails to establish a single country of residence, because the individual has a habitual abode in both countries or in neither of them, he is deemed to be a resident of the country with which his personal and economic relations are closer. Citizenship, per se, is not recognized by Australia as a tie breaker, but if the individual is a citizen of one of the Contracting States, that factor will be taken into account in determining where his personal and economic relations are closer. If these tests do not establish a single residence, the competent authorities will attempt to settle the question by mutual agreement under Article 24 (Mutual Agreement Procedure). Once an individual is assigned a residence under this paragraph for a taxable year, he is a resident only of that State for all purposes of the Convention for that year. 　　The residence of persons other than individuals is determined under the respective laws of the Contracting States. A dual resident company is treated as a resident of neither Contracting State for purposes of the convention. (See paragraph 1(g) of Article 3 (General Definitions).) ARTICLE 5 Permanent Establishment 　　The rule governing the taxation by a Contracting State of business income derived by a resident of the other State utilize the concept of a "permanent establishment." Paragraph 1 of this Article defines in general terms the "permanent establishment" concept, and the following paragraphs give some specific illustrations of the meaning of the term. 　　A place of management, branch, office, factory, workshop and a place of extraction of natural resources, such as a well or quarry, are examples of a permanent establishment. Since a place of management would in most cases require an office, which is specifically noted in paragraph 2, the addition of that term will not generally cause a permanent establishment to exist where there would not otherwise be one. 　　A building site or construction or installation project will only be considered a permanent establishment if it lasts longer than 9 months, and an installation, drilling rig or ship used for dredging or exploring or exploiting offshore natural resources is a permanent establishment only if so used for at least 6 months in any 24-month period. In such a case, the site, project, installation, rig or ship constitutes a permanent establishment from the first day when work physically begins within the territory of a Contracting State. A series of contracts or projects which are interdependent both commercially and geographically are to be treated as a single project for the purpose of applying the 9- month and 6-month tests. 　　Paragraph 3 enumerates certain activities which may be undertaken singly or in　combination without creating a permanent establishment. Although subparagraph (f) of this paragraph of the U.S. Model was deleted, the same effect is obtained by the insertion of the reference to "one or more" in the introductory language of paragraph 3. 　　Paragraphs 4(a) and 5 consider the use of agents. A dependent agent who habitually exercises an authority to conclude contracts in the name of an enterprise is deemed to be a permanent establishment of that enterprise except to the extent that his activities are limited to those mentioned in paragraph 3 which would not constitute a permanent establishment under that paragraph. An enterprise of a Contracting State will not be considered to have a permanent establishment in the other State merely because it uses the services of an independent agent acting in the ordinary course of business in that other State. 　　Subparagraphs (b), (c) and (d) of paragraph 4 specify certain activities which constitute a permanent establishment even if not carried on through a fixed place of business like those enumerated in paragraph 2. Maintaining substantial equipment in a Contracting State for rental or other purposes for longer than 12 months constitutes a permanent establishment unless the equipment is leased under a "hire-purchase" agreement. Under Australian law the lessee under a "hire-purchase" agreement (a lease accompanied by certain lessee purchase options or rights) is treated for tax purposes as the owner of the leased property. The exception for hire-purchase agreements in this Article and elsewhere in the Convention (see Article 12 (Royalties)) was inserted at the request of Australia to distinguish such agreements from leases respected as such for tax purposes. Such a distinction is also made in the Commentary to Article 12 of the OECD Model Convention. Similarly, under the Internal Revenue Code, the terms of a "lease" may be such that for U.S. income tax purposes the lessee is treated as the owner of the property. For purposes of United States tax the exception for "hire-purchase" agreements simply confirms such treatment, which would also apply in the absence of such an explicit exception. See paragraph 2 of Article 3 (General Definitions). Engaging in supervisory activities at a building site or construction, assembly or installation project for more than 9 months in a 24-month period constitutes a permanent establishment. And, an enterprise which maintains goods in the other Contracting State which goods were either purchased there (and not previously processed elsewhere) or produced there by it or in its behalf, and are then substantially processed there by a related enterprise is deemed to have a permanent establishment in that other State. This provision was added at the request of Australia to permit it to tax a portion of the sale profit when goods are produced or purchased in Australia, processed there at cost by a related enterprise, and then sold. It is an alternative approach to allocating part of the profit to the processing operation in such a case, as the United States could do under section 482. 　　Paragraph 6 provides that control of one company by another does not of itself constitute either company a permanent establishment of the other. The determination as to whether a subsidiary is a permanent establishment of its parent corporation, or the converse, or whether two or more subsidiaries of the same corporation are permanent establishments of the parent or of each other is made by reference to the tests set out in paragraphs 1 through 5. 　　These same principles apply in determining whether an enterprise of a Contracting State has a permanent establishment in a third State or whether an enterprise of a third State has a permanent establishment in a Contracting State. Such a determination may be relevant, for example, in deciding the source of interest (paragraph 7 of Article 11 (Interest)) or royalties (paragraph 6 of Article 12 (Royalties)). ARTICLE 6 Income from Real Property 　　This Article provides that income from real property may be taxed by the Contracting State where the property is located. This rule does not confer an exclusive right of taxation on the State where the property is located. It simply provides that the situs State has the primary right to tax such income, regardless of whether the income is derived through a permanent establishment in that State or not. The provision in the U.S. Model for a binding election to be taxed on a net basis was deleted. Such an election is available under U.S. law and Australia taxes income from real estate on a net basis. The Article incorporates the rule that a leasehold interest in land and rights to exploit or explore for natural resources constitute real property situated where the land or resources, respectively, are situated. Except for those cases, the definition of real property is governed by the internal law of the Contracting State where the property is situated. ARTICLE 7 Business Profits 　　This Article provides rules for the taxation by a Contracting State of income from　business activity carried on by a resident of the other State. 　　Paragraph 1 provides that business profits of an enterprise of one Contracting State shall　be taxable only in that State except to the extent that such profits are attributable to a permanent establishment through which the enterprise carries on business in the other Contracting State. (The term "enterprise of one of the Contracting States," used here and elsewhere in this Convention, excludes dual-resident corporations that are treated as residents of neither Contracting State for purposes of the Convention.) 　　Paragraph 2 provides that the profits to be attributed to a permanent establishment are those which it might be expected to make if it were an independent enterprise engaged in similar activities under similar conditions. The profits must reflect arm's length prices. The profits so attributed may be from income described in section 864(c)(4)(B) of the Internal Revenue Code which are attributable to a permanent establishment in the United States may be subject to tax by the United States. In addition, the limited "force of attraction" rule in I.R.C. section 864(c)(3) does not apply for U.S. tax purposes under the Convention. 　　Paragraph 3 provides that deductions shall be allowed for expenses incurred for the purposes of the permanent establishment, including, inter alia, executive and general administrative expenses, wherever incurred, if such expenses are reasonably connected with the profits of the permanent establishment and would be deductible if it were an independent entity. Australia and the United States will each allow an allocation to a permanent establishment of a portion of research and development and interest expenses incurred by the U.S. home office or elsewhere, provided that the expenses are reasonably connected with the profits of the permanent establishment. 　　Paragraph 4 states that no profits shall be attributed to a permanent establishment by reason of the mere purchase by it of goods or merchandise for the enterprise. 　　Paragraph 5 provides that, unless there is good and sufficient reason to the contrary, the same method of determining profits attributable to the permanent establishment shall be used each year. 　　Paragraph 6 provides that, where business profits include items of income dealt within other articles of the Convention, the provisions of those other articles override the provisions of this Article. For example, the taxation of income of international shipping and aircraft operations is governed by Article 8 (Shipping and Air Transport) and not by this Article. Similarly, the taxation of dividends, interest, and royalties is controlled by Articles 10, 11, and 12, respectively; however, the terms of those Articles provide that where dividends, interest, or royalties derived by a resident of a Contracting State are attributable to a permanent establishment in the other Contracting State, the provisions of this Article do apply and the item of income is taxed as business profits. 　　Paragraph 7 was inserted at the request of Australia to permit the tax authorities of a Contracting State to apply the provisions of internal law in determining tax liability in cases where the information available to the competent authority is not adequate to measure accurately the profits of a permanent establishment. The Internal Revenue Service would have this power even in the absence of such a specific provision. The determination of profits in such cases, based on the available information, must be done consistently with the principles of this Article, i.e., it must seek to reflect arm's length pricing and appropriate deductions of expenses. 　　Notwithstanding the other provisions of this Article, paragraph 8 allows each State to apply its domestic law in taxing income from the insurance business, provided that such law remains the same as on the date the Convention was signed or is modified only in minor respects. In the case of a nonresident general insurance company which insures risks in Australia, Australia imposes its ordinary corporate tax rate (now 46 percent) on a deemed profit equal to 10 percent of the gross premiums from such insurance. The company may elect instead to be taxed on a net basis. The United States will apply its excise tax on insurance and reinsurance premiums of Australian insurers or will tax the net income of a U.S. trade or business of an Australian insurer, as appropriate. 　　Unlike the U.S. Model, this Convention does not provide that business profits include income from the rental of tangible personal property and films. In this Convention those types of rentals are treated as royalties under Article 12 (Royalties). However, the maintenance of substantial equipment in the other Contracting State for more than 12 months (other than equipment leased under a "hire-purchase" agreement) constitutes a permanent establishment covered by this Article.