Taxation (Interest on Overpayments) Regulations (Amendment) (Cth)

Statutory Rules 1995

No. 448 1

__________________

Taxation (Interest on Overpayments) Regulations 2(Amendment)

I, The Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Taxation (Interest on Overpayments and Early Payments) Act 1983.

Dated 20 December 1995.

 BILL HAYDEN

 Governor-General

By His Excellency’s Command,

GEORGE GEAR

Assistant Treasurer

____________

1.   Amendment

1.1   The Taxation (Interest on Overpayments) Regulations are amended as set out in these Regulations.

[NOTE: These Regulations commence on gazettal: see Acts Interpretation Act 1901, s. 48.]

2.   Regulation 1 (Citation)

2.1   After “Overpayments”, insert “and Early Payments”.

3.   Regulation 3 (Interpretation)

3.1   After “Overpayments”, insert “and Early Payments”.

3.2   Add at the end:

 “(2) A reference in these Regulations to a double tax agreement by name is a reference to the agreement so described in subsection 3 (1) of the International Tax Agreements Act 1953.”.

4. New

regulations and Schedules

4.1   Add at the end:

Prescribed economic double tax correlative relief provisions (Act, paragraph 3A (1) (b))

 “5.For the purposes of paragraph 3A (1) (b) of the Act, the provisions of the double tax agreements listed in Schedule 1 are prescribed.

Prescribed manner of operation of business profits provisions—juridical double tax relief (Act, paragraph 3A (1) (b))

 “6.(1) For the purposes of paragraph 3A (1) (b) of the Act, the following manner of operation of the provisions of the double tax agreements listed in Schedule 2 is prescribed:

• (a)

  in the case that the taxpayer is a resident of Australia—if the provision has been applied in a manner which increases the profits of the taxpayer which are attributable to a permanent establishment in the other Contracting State; or

• (b)

  in the case that the taxpayer is not a resident of Australia—if the provision has been applied in a manner which decreases the profits of the taxpayer which are attributable to a permanent establishment in Australia.

 “(2) In subregulation (1), unless the contrary intention appears, ‘profits’ includes:

• (a)

  industrial or commercial profits within the meaning of:

  • (i)

    the Japanese agreement; or

  • (ii)

    the United Kingdom agreement; or

  • (iii)

    the 1960 New Zealand agreement; or

  • (iv)

    the 1972 New Zealand agreement; or

  • (v)

    the previous Canadian agreement; or

  • (vi)

    the previous United Kingdom agreement; or

  • (vii)

    the previous United States convention; or

• (b)

  income or profits within the meaning of the Malaysian agreement; or

• (c)

  business profits within the meaning of the United States convention.

 “(3) For the purposes of paragraph 3A (1) (b) of the Act, the following manner of operation of the provisions of the double tax agreements listed in Schedule 3 is prescribed:

• (a)

  in the case that the taxpayer is a resident of Australia—if the provision has been applied in a manner which results in an increase in:

  • (i)

    the profits of the taxpayer which are attributable to a permanent establishment in the other Contracting State; or

  • (ii)

    the profits attributable to the sales in the other Contracting State of goods or merchandise of the same or similar kind as those sold through that permanent establishment; or

  • (iii)

    the profits attributable to other business activities carried on in the other Contracting State of the same or similar kind as those carried on through that permanent establishment; or

• (b)

  in the case that the taxpayer is not a resident of Australia—if the provision has been applied in a manner which results in a decrease in:

  • (i)

    the profits of the taxpayer which are attributable to a permanent establishment in Australia; or

  • (ii)

    the profits attributable to the sales in Australia of goods or merchandise of the same or similar kind as those sold through that permanent establishment; or

  • (iii)

    the profits attributable to other business activities carried on in Australia of the same or similar kind as those carried on through that permanent establishment.

Prescribed economic double tax correlative relief provisions (Act, paragraph 3A (2) (b))

 “7.For the purposes of paragraph 3A (2) (b) of the Act, Article 9 (paragraph (3)) of the Vietnamese agreement is prescribed.

Prescribed manner of operation of business profits provisions—juridical double tax relief (Act, paragraph 3A (2) (b))

 “8. For the purposes of paragraph 3A (2) (b) of the Act, the following manner of operation of Article 7 of the Vietnamese agreement is prescribed:

• (a)

  in the case that the taxpayer is a resident of Australia—if the paragraph applies in a manner which increases the profits of the taxpayer which are attributable to a permanent establishment in the primary foreign country; or

• (b)

  in the case that the taxpayer is not a resident of Australia—if the paragraph applies in a manner which decreases the profits of the taxpayer which are attributable to a permanent establishment in Australia.

 “SCHEDULE 1 Regulation 5

provisions of double tax agreements prescribed for the purpose of paragraph 3A (1) (b) of the Act

 

Provision
Item no.	Double tax agreement	Article		Paragraph
101	Austrian agreement	9		(3)
102	Belgian agreement	9		(3)
103	Canadian convention	9		(3)
104	Chinese agreement	9		3
105	Czech agreement	9		3
106	Danish agreement	9		(3)
107	Fijian agreement	9		(4)
108	Finnish agreement	9		(3)
109	French agreement	8		(3)
110	Hungarian agreement	9		(3)
111	Indian agreement	9		(3)
112	Indonesian agreement	9		(3)
113	Irish agreement	10		(4)
114	Japanese agreement	17		(4)
115	Kiribati agreement	9		3
116	Korean convention	9		(5)
117	Malaysian agreement	23		4
118	Maltese agreement	9		(3)
119	Netherlands agreement	9		(2)
120	1972 New Zealand agreement	18		(4)
121	New Zealand agreement	9		3
122	Norwegian convention	9		(3)
123	Papua New Guinea agreement	9		3
124	Philippine agreement	9		(3)

125	Polish agreement	9	3
126	Singapore agreement (as in force at any time)	6	3
127	Singapore agreement (as in force before 19.12.1989)	18	6
128	Spanish agreement	9	(3)
129	Sri Lankan agreement	9	(3)
130	Swedish agreement	9	(3)
131	Thai agreement	9	3
132	United Kingdom agreement	19	(4)
133	United States convention	9	(2)
134	Vietnamese agreement	9	(3)

“SCHEDULE 2 Subregulation 6 (1)

provisions of double tax agreements for which the manner of operation is prescribed for the purpose of paragraph 3A (1) (b) of the act

Item no.	Double tax agreement	Article
201	Austrian agreement	7
202	Belgian agreement	7
203	Canadian convention	7
204	Chinese agreement	7
205	Czech agreement	7
206	Danish agreement	7

207	Finnish agreement	7
208	French agreement	6
209	German agreement	7
210	Hungarian agreement	7
211	Irish agreement	8
212	Italian convention	7
213	Japanese agreement	4
214	Korean convention	7
215	Malaysian agreement	7
216	Maltese agreement	7
217	Netherlands agreement	7
218	1960 New Zealand agreement	III
219	1972 New Zealand agreement	5
220	New Zealand agreement	7
221	Norwegian convention	7
222	Polish agreement	7
223	Previous Canadian agreement	III
224	Previous United Kingdom agreement	III
225	Previous United States convention	III
226	Singapore agreement	5
227	Spanish agreement	7
228	Swedish agreement	7
229	Swiss agreement	7
230	United Kingdom agreement	5
231	United States convention	7
232	Vietnamese agreement	7

 “SCHEDULE 3 Subregulation 6 (3)

provisions of double tax agreements for which the manner of operation is prescribed for the purpose of paragraph 3A (1) (b) of the act

Item no.	Double tax agreement	Article
301	Fijian agreement	7
302	Indian agreement	7
303	Indonesian agreement	7
304	Kiribati agreement	7
305	Papua New Guinea agreement	7
306	Philippine agreement	7
307	Sri Lankan agreement	7
308	Thai agreement	7”.

NOTES

1. Notified in the Commonwealth of Australia Gazette on 22 December 1995.

2. Statutory Rules 1992 No. 178 as amended by 1994 No. 220.