| C2004C03820 | ESTATE DUTY CONVENTION (UNITED STATES OF AMERICA) ACT 1953
- Incorporating all amendments by legislation made to 31 August 1979
- Reprinted as at 31 August 1979 (#DATE 31:08:1979)
*1* The Estate Duty Convention (United States of America) Act 1953 (a) as shown in this reprint comprises Act No. 83, 1953 as amended by the other Act specified in the following table: ---------------------------------------------------------------------------- Act Number and year Date of Assent Date of commencement ---------------------------------------------------------------------------- Estate Duty Convention (United States of America) Act 1953 No. 83, 1953 11 Dec 1953 11 Dec 1953 Statute Law Revision Act 1973 No. 216, 1973 19 Dec 1973 31 Dec 1973 ---------------------------------------------------------------------------- (a) This citation is provided for by the Amendments Incorporation Act 1905 and the Acts Citation Act 1976. ESTATE DUTY CONVENTION (UNITED STATES OF AMERICA) ACT 1953 - TABLE OF
PROVISIONS
TABLE
TABLE OF PROVISIONS
Section
1. Short title
2. Commencement
3. Interpretation
4. Incorporation
5. The Convention to have the force of law
6. Determination of claims for credits
7. Evidence of determinations
8. Amendment of determinations
9. Reviews and appeals
10. Deductions under sub-section 8 (7) of the Assessment Act
11. Application of credit
12. Regulations
THE SCHEDULE
Convention
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ESTATE DUTY CONVENTION (UNITED STATES OF AMERICA) ACT 1953 - LONG TITLE
SECT
An Act to give the force of Law to a Convention with the United States of
America with respect to Duties and Taxes on Estates of Deceased Persons, and
for purposes incidental thereto
ESTATE DUTY CONVENTION (UNITED STATES OF AMERICA) ACT 1953 - SECT. 1.
Short title.
SECT
1. This Act may be cited as the Estate Duty Convention (United States of
America) Act 1953.*1*
See notes to first article of this Chapter.
ESTATE DUTY CONVENTION (UNITED STATES OF AMERICA) ACT 1953 - SECT. 2.
Commencement.
SECT
2. This Act shall come into operation on the day on which it receives the
Royal Assent.*1*
See notes to first article of this Chapter.
ESTATE DUTY CONVENTION (UNITED STATES OF AMERICA) ACT 1953 - SECT. 3.
Interpretation.
SECT
3. In this Act, unless the contrary intention appears-
"Australian duty" means estate duty imposed by the Estate Duty Act
1914-1941;
"foreign duty" means a tax imposed by the laws of the United States of
America, being a tax to which the Convention applies;
"the Assessment Act" means the Estate Duty Assessment Act 1914-1953;
"the Convention" means the Convention between the Government of the
Commonwealth and the Government of the United States of America for the
avoidance of double taxation and the prevention of fiscal evasion with respect
to taxes on the estates of deceased persons, being the convention a copy of
which is set out in the Schedule to this Act.
ESTATE DUTY CONVENTION (UNITED STATES OF AMERICA) ACT 1953 - SECT. 4.
Incorporation.
SECT
4. (1) Subject to the next succeeding sub-section, the Assessment Act is
incorporated and shall be read as one with this Act.
(2) The provisions of this Act have effect notwithstanding anything
inconsistent with those provisions contained in the Assessment Act.
ESTATE DUTY CONVENTION (UNITED STATES OF AMERICA) ACT 1953 - SECT. 5.
The Convention to have the force of law.
SECT
5. Subject to this Act, the provisions of the Convention, so far as those
provisions affect Australian duty, shall, on and after the date on which the
Convention comes into force, have the force of law in relation to estates of
deceased persons in respect of which the Convention is effective.
ESTATE DUTY CONVENTION (UNITED STATES OF AMERICA) ACT 1953 - SECT. 6.
Determination of claims for credits.
SECT
6. (1) Where a claim is made for a credit for foreign duty in accordance
with the provisions of the Convention, the Commissioner shall determine
whether a credit is allowable and, if so, the amount of the credit.
(2) A determination under this Act does not form part of an assessment under
the Assessment Act.
(3) As soon as conveniently may be after a determination is made, the
Commissioner shall serve notice in writing of the determination, by post or
otherwise, upon the person claiming the credit.
(4) The notice in writing under the last preceding sub-section may be
included in a notice of assessment.
ESTATE DUTY CONVENTION (UNITED STATES OF AMERICA) ACT 1953 - SECT. 7.
Evidence of determinations.
Amended by No. 216, 1973, s. 3.
SECT
7. The production of a notice of a determination, or of a document under the
hand of the Commissioner, a Second Commissioner or a Deputy Commissioner
purporting to be a copy of a notice of a determination, is conclusive evidence
of the due making of the determination and (except in proceedings on appeal
against the determination) that the determination is correct.
ESTATE DUTY CONVENTION (UNITED STATES OF AMERICA) ACT 1953 - SECT. 8.
Amendment of determinations.
SECT
8. (1) Subject to the next two succeeding sub-sections, the Commissioner may
at any time amend a determination in such manner as he thinks necessary.
(2) Where a person claiming a credit for foreign duty has made to the
Commissioner a full and true disclosure of all the material facts necessary
for the making of a determination and a determination is made after that
disclosure, an amendment of the determination decreasing the amount of a
credit shall not be made except to correct an error in calculation or a
mistake of fact or in consequence of an adjustment, credit or refund of
Australian duty or foreign duty.
(3) An amendment of a determination increasing the amount of a credit for
foreign duty shall not be made except to correct an error in calculation or a
mistake of fact or in consequence of an adjustment, credit or refund of
Australian duty or foreign duty.
(4) Nothing in this section prevents the amendment of a determination in
order to give effect to the decision upon an appeal or review, or the
amendment of a determination increasing the amount of a credit for foreign
duty in pursuance of an objection made by the person who claimed the credit or
pending an appeal or review.
(5) An amended determination shall, for all the purposes of this Act, be
deemed to be a determination.
ESTATE DUTY CONVENTION (UNITED STATES OF AMERICA) ACT 1953 - SECT. 9.
Reviews and appeals.
SECT
9. (1) The provisions of Part V of the Assessment Act apply to and in
relation to determinations under this Act in like manner as they apply to and
in relation to assessments under the Assessment Act and, for the purposes of
those provisions as so applying-
(a) a reference in that Part to an assessment under the Assessment Act
shall be read as a reference to a determination under this Act; and
(b) the references in sub-section (3) of section twenty-six, and in
sub-section (4) of section twenty-seven, of the Assessment Act to the
reduction of an assessment by the Commissioner and to the reduced assessment
shall be read as references to the amendment of a determination by the
Commissioner and to the amended determination, respectively.
(2) The fact that an appeal or reference in respect of a determination is
pending does not in the meantime interfere with or affect the determination or
an assessment of duty against which a credit is claimed, and duty may be
recovered on the assessment as if an appeal or reference were not pending.
ESTATE DUTY CONVENTION (UNITED STATES OF AMERICA) ACT 1953 - SECT. 10.
Deductions under sub-section 8 (7) of the Assessment Act.
SECT
10. In relation to the estates of persons dying on or after the date on
which the Convention comes into force, sub-section (7) of section eight of the
Assessment Act has effect as if the reference in that sub-section to duty paid
in any place outside Australia did not include a reference to foreign duty.
ESTATE DUTY CONVENTION (UNITED STATES OF AMERICA) ACT 1953 - SECT. 11.
Application of credit.
SECT
11. (1) Subject to this section, the amount of a credit for foreign duty is
a debt due and payable to the person entitled to the credit by the
Commissioner on behalf of the Commonwealth.
(2) The Commissioner may apply the whole or a part of the credit in total or
partial discharge of any liability to the Commonwealth of the person entitled
to the credit arising under, or by virtue of, the Assessment Act or any other
Act of which the Commissioner has the general administration.
(3) Where, under the last preceding sub-section, the Commissioner has
applied an amount of credit for foreign duty in discharge of a liability of a
person to the Commonwealth, that person shall be deemed to have paid the
amount so applied for the purpose for which, and at the time at which, it has
been so applied.
(4) Where, by reason of an amendment of a determination made under this Act,
the amount, or the sum of the amounts, applied or paid by the Commissioner as
a credit for foreign duty to which a person is entitled exceeds the amount of
the credit to which that person is entitled, the Commissioner may, subject to
the next succeeding sub-section, recover the amount of the excess as if it
were Australian duty due and payable by that person.
(5) An administrator is not liable for an amount which, but for this
sub-section, would be recoverable from him under the last preceding
sub-section except to the extent of any property under his control or which
can be applied by him for payment of the amount, unless it is owing to fraud
or evasion on his part that the amount applied or paid by the Commissioner in
the first instance as a credit for foreign duty was not the proper amount, in
which case the administrator is personally liable for the amount recoverable
from him under the last preceding sub-section.
(6) For the purposes of sub-section (10) of section twenty of the Assessment
Act, a credit for foreign duty to which an administrator is entitled shall be
deemed to be property under his control.
ESTATE DUTY CONVENTION (UNITED STATES OF AMERICA) ACT 1953 - SECT. 12.
Regulations.
SECT
12. The power to make regulations conferred by section fifty of the
Assessment Act shall be deemed to extend to the making of regulations, not
inconsistent with this Act, prescribing all matters which by this Act are
required or permitted to be prescribed, or which are necessary or convenient
to be prescribed for carrying out or giving effect to this Act.
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ESTATE DUTY CONVENTION (UNITED STATES OF AMERICA) ACT 1953 - SCHEDULE
SCH
THE SCHEDULE
Section
3
CONVENTION BETWEEN THE GOVERNMENT OF THE COMMONWEALTH OF AUSTRALIA AND THE
GOVERNMENT OF THE UNITED STATES OF AMERICA FOR THE AVOIDANCE OF DOUBLE
TAXATION
AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON THE ESTATES OF
DECEASED PERSONS.
The Government of the Commonwealth of Australia and the Government of the
United States of America, desiring to conclude a Convention for the avoidance
of double taxation and the prevention of fiscal evasion with respect to taxes
on
estates of deceased persons, have appointed for that purpose as their
respective Plenipotentiaries:
The Government of the Commonwealth of Australia:
Sir Percy C. Spender, K.B.E., Q.C., Ambassador Extraordinary and
Plenipotentiary of the Commonwealth of Australia, and
The Government of the United States of America:
Mr. Walter Bedell Smith, Acting Secretary of State of the United States of
America,
who, having communicated to one another their full powers, found in good and
due form, have agreed as follows:
Article I
(1) The taxes which are the subject of this Convention are-
(a) In the United States:
The Federal estate tax;
(b) In Australia:
The Commonwealth estate duty.
(2) This Convention shall also apply to any other tax of a substantially
similar character imposed by either Contracting State after the date of
signature of this Convention.
Article II
(1) In this Convention, unless the context otherwise requires-
(a) the term "United States" means the United States of America and,
when
used in a geographical sense, includes only the States thereof, the
Territories
of Alaska and Hawaii and the District of Columbia;
(b) the term "Australia" means the Commonwealth of Australia and
includes
the Territories of Papua, New Guinea and Norfolk Island;
(c) the term "tax" means the Federal estate tax imposed by the United
States, or the Commonwealth estate duty imposed by Australia, as the context
requires;
(d) the term "taxation authority" means, in the case of the United
States,
the Commissioner of Internal Revenue as authorized by the Secretary of the
Treasury and, in the case of Australia, the Commissioner of Taxation or his
authorized representative;
(e) the term "territory ", when used in relation to one or the other of
the
Contracting States, means Australia or the United States, as the context
requires.
(2) In the application of the provisions of this Convention by one of the
Contracting States, any term not otherwise defined shall, unless the context
otherwise requires, have the meaning which it has under the laws of that
State
relating to the taxes which are the subject of this Convention.
(3) For the purposes of this Convention, the question whether a decedent was
a citizen, or was domiciled in any part of the territory, of one of the
Contracting States at the time of his death shall be determined in accordance
with the law in force in that territory.
Article III
(1) Where a person dies a citizen of the United States or domiciled in any
part of the territory of either Contracting State, the situs of rights and
interests, legal or equitable, in or over the classes of property specified
in
this paragraph shall, for the purposes of the imposition of tax upon the
estate
of that person by reason only of the situs of property being within the
taxing
State and for the purposes of the credit allowable under Article V of this
Convention, be determined exclusively in accordance with the following rules:
(a) Immovable property (otherwise than by way of security) shall be deemed
to be situated at the place where the land concerned is located;
(b) Tangible movable property (otherwise than by way of security and other
than property for which specific provision is hereinafter made) and bank or
currency notes and other forms of currency recognized as legal tender at the
place of issue shall be deemed to be situated at the place where that
property
or currency is located, or, if in transitu, at the place of destination;
(c) Debts (including bonds other than bonds referred to in sub-paragraph
(d)
hereof, bills of exchange and promissory notes, whether negotiable or not),
secured or unsecured and whether under seal or not, excluding the forms of
indebtedness for which specific provision is made elsewhere in this
paragraph,
shall be deemed to be situated at the place where the debtor is resident, but
if the debtor, at the time of the decedent's death, has an established place
of
business in the State in which the decedent was domiciled and debts were
incurred in carrying on the business of that establishment, the debts so
incurred shall be deemed to be situated in that State;
(d) Bonds, stocks, debentures, and other debts being securities, issued by
any government, municipality or public authority shall be deemed to be
situated
at the place where that government, municipality or public authority is
located;
(e) Bank accounts shall be deemed to be situated at the place where the
bank
or branch thereof, at which the account was kept, is located;
(f) Moneys, payable under a policy of assurance or insurance or under an
annuity contract, whether under seal or not, shall be deemed to be situated
where the policy or annuity contract provides that the moneys shall be
payable,
or, if the policy or annuity contract does not provide where the moneys shall
be payable-
(i) in the case of a company (corporation)-at the place where it is
incorporated;
(ii) in any other case-at the place of residence of the person by whom
the moneys are payable;
(g) A partnership shall be deemed to be situated at the place where the
business of the partnership is carried on, but only to the extent of the
partnership business at that place;
(h) Ships and aircraft and shares thereof shall be deemed to be situated
at
the place of registration of the ship or aircraft;
(i) Goodwill as a trade, business or professional asset shall be deemed to
be situated at the place where the trade, business or profession to which it
pertains is carried on;
(j) Patents, trade marks and designs shall be deemed to be situated at the
place where they are registered;
(k) Copyright, franchises, and rights or licenses to use any copyrighted
material, patent, trade mark or design shall be deemed to be situated at the
place where the rights arising therefrom are exercisable;
(l) Rights or causes of action ex delicto surviving for the benefit of an
estate of a deceased person shall be deemed to be situated at the place where
such rights or causes of action arose;
(m) Judgment debts shall be deemed to be situated at the place where the
judgment is originally obtained.
(2) The situs of rights or interests, legal or equitable, in or over
property
not specified in paragraph (l) of this Article, shall be determined in
accordance with the law in force in the Contracting State imposing the tax or
allowing the credit.
Article IV
(1) In determining the amount on which tax is to be computed, permitted
deductions shall be allowed in accordance with the law in force in the
Contracting State imposing the tax.
(2) Where, upon the death of a person, tax is imposed by one Contracting
State and that person, at the time of his death, was not domiciled in any part
of the
territory of that State, but was a citizen, or was domiciled in some part of
the territory, of the other Contracting State, the State so imposing that
tax-
(a) shall allow as an exemption an amount not less than an amount which
bears the same proportion to any specific exemption that would have been
allowed under the laws of that State if that person had been domiciled therein
as the value of the property subjected to that tax bears to the value of the
property which
would have been subjected to that tax if that person had been so domiciled;
and
(b) shall (except for the purposes of sub-paragraph (a) of this paragraph
and except for the purposes of any proportional allowance provided for in the
laws
of the Contracting State imposing that tax) take no account, in determining
the
amount or rate of that tax, of property situated outside its territory.
Article V
(1) Where a Contracting State imposes tax by reason of a decedent's being
domiciled in some part of its territory or being its citizen, that State
shall
allow against so much of its tax (as otherwise computed) as is attributable
to
property situated in the territory of the other Contracting State, a credit
(not exceeding the amount of the tax so attributable) equal to so much of the
tax
imposed by that other Contracting State as is attributable to that property;
but this paragraph shall not apply as respects so much of that property as is
referred to in paragraph (2) of this Article.
(2) Where each Contracting State imposes tax by reason of a decedent's
being
domiciled in some part of its territory or being its citizen, each
Contracting
State shall allow against so much of its tax (as otherwise computed) as is
attributable to property which is situated-
(a) outside the territory of each Contracting State; or
(b) in the territory of each Contracting State,
a credit which bears the same proportion to-
(c) the amount of its tax so attributable; or
(d) the amount of the other State's tax attributable to that property,
whichever is the less, as the first-mentioned amount bears to the sum of both
amounts.
(3) The amount of the tax in each Contracting State attributable to any
property shall be ascertained after deducting from the total amount of tax
any
applicable diminution or credit, other than the credit to be allowed under
this
Article: Provided, That, in case another credit for death duty is allowable
with respect to the same property pursuant to any other Convention between
the
crediting State under this Convention and any other State, or pursuant to a
law
of the crediting State, the total credits shall not exceed the amount of tax
of
the crediting State attributable to that property computed before allowance
of
those credits, and in computing credit under paragraph (2) of this Article
with
respect to property situated outside both Contracting States any credit
allowable by either Contracting State for death duty payable in the country
where the property is situated shall be taken into account in ascertaining
the
amount of tax of that Contracting State attributable to that property. Any
diminution or credit to be allowed on account of Federal gift tax or
Commonwealth gift duty paid or payable on any gift comprised in the estate is
the amount remaining after deducting any credit allowed or allowable under
any
Convention in force between the Contracting States for the avoidance of
double
taxation with respect to taxes on gifts.
(4) Subject to the provisions of paragraph (3) of this Article, the amount
of
credit allowable by one of the Contracting States shall not be reduced as a
result of the allowance of a credit for any death duty to which this
Convention
does not relate.
(5) A credit or refund of tax resulting from the application of this
Article
shall not be granted unless a claim for that credit or refund, accompanied by
all the information necessary for the purpose of ascertaining the amount of
the
credit or refund, is made within six years from the date of the decedent's
death.
(6) A refund of tax resulting from the application of this Article shall be
made without payment of interest on the amount refunded.
(7) Credit against tax imposed by one of the Contracting States shall not
be
finally allowed for tax imposed by the other Contracting State until the
latter
tax (reduced by credit, if any, allowable under this Article) has been paid.
Article VI
(1) The taxation authorities of the Contracting States shall exchange such
information (being information available under the Federal estate tax or the
Commonwealth estate duty laws of the Contracting States) as is necessary for
carrying out the provisions of this Convention or for the prevention of fraud
or the administration of statutory provisions against avoidance of the taxes
which
are the subject of this Convention.
(2) Any information so exchanged shall be treated as secret and shall not
be
disclosed to any persons other than those (including a Court or a reviewing
authority) concerned with the assessment or collection of the taxes which are
the subject of this Convention or the determination of appeals in relation
thereto.
(3) No information shall be exchanged which would disclose any trade secret
or trade process.
Article VII
Where an executor, administrator, trustee or beneficiary shows proof that
the
action of the taxation authority of one of the Contracting States has
resulted,
or is likely to result, in double taxation contrary to the provisions of this
Convention, he shall be entitled to present the facts to his State of
citizenship or domicile or, if a corporation or company, to the State in
which
it is created, organized or incorporated and, should the claim be deemed
worthy
of consideration, the taxation authority of that State shall endeavour to
come
to an agreement with the taxation authority of the other State with a view to
avoidance of any double taxation that may be involved.
Article VIII
(1) The provisions of this Convention shall not be construed so as to deny
or
affect in any manner any right of diplomatic or other official
representatives
of either Contracting State to exemptions which they may now enjoy or which
may
hereafter be granted to those representatives.
(2) This Convention shall not be construed as increasing the liability of
the
estate of any person under the estate tax laws of the United States.
(3) Should any difficulty or doubt arise as to the interpretation or
application of this Convention or its relationship to Conventions between one
of the Contracting States and any other State, the taxation authorities of
the
Contracting States may, subject to applicable rights of appeal, settle the
question by mutual agreement.
(4) The taxation authority of each Contracting State may communicate
directly
with the taxation authority of the other Contracting State for the purpose of
giving effect to the provisions of this Convention.
Article IX
(1) This Convention shall be ratified and the instruments of ratification
shall be exchanged at Canberra as soon as possible.
(2) This Convention shall come into force on the date of exchange of
instruments of ratification and shall be effective only as to the estates of
persons dying on or after that date.
(3) This Convention shall remain in force indefinitely but either
Contracting
State may on or before the 31st day of March in any calendar year after the
year 1955 give the other Contracting State notice of termination, in which
event the
Convention shall not be effective in respect of the estates of decedents
dying
after the 30th day of September in the year in which that notice is given.
IN WITNESS WHEREOF the above-mentioned Plenipotentiaries have signed the
present Convention and have affixed thereto their seals.
DONE at Washington, in duplicate, on the fourteenth day of May, one
thousand
nine hundred and fifty-three.
FOR THE GOVERNMENT OF THE COMMONWEALTH OF AUSTRALIA:
PERCY C. SPENDER (L.S.)
FOR THE GOVERNMENT OF THE UNITED STATES OF AMERICA:
WALTER BEDELL SMITH (L.S.)
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