Issue
Contain Contents
The concerned case notified that there is a problem regarding accession of income tax from the year 30 June 2009 to 30 June 2016. Mr Pike is a resident of both Thailand and Australia, therefore, the commissioner complained of not paying tax between the stated years. The application of “Australian Citizenship Act 2007 (Cth)” and “Income Tax Assessment Act 1936 (Cth)” is going to be discussed. Application of tiebreaker rule in Thailand or Australia Tax Agreement (DTA) will also be applied in the given case. Within the ordinary concept, the primary judge established that Mr Pike is a “resident” of Australia in later years. “Primary judge” also found that Mr Pike satisfied the “domicile” test of the residency which states that he is an important resident of this Australia.
Rule
Relating to this context of this issue it has been found that it falls under the Article 4(3), “Agreement between Australia and the Kingdom of Thailand for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income”, which has been signed in 31st August in the year of 1989, [1989] ATS 36, has entered into force from “27 December 1989” (“Double Tax Agreement”)[1]. Under the law of Thailand, Mr Pike, a resident of Thailand during the years 2009 to 2014, “Article 4(3)” consists of the provision of “tiebreaker” which is applied when the taxpayer, a resident of both the contracting states. “Section 6(1)” from “Income Tax Assessment Act 1936” states the “residents of Australia” or “residents” which includes the person’s domicile in Australia, other than the satisfaction of the commissioner that the permanent place of the concerned person is outside the stated country[2]. Art 4(3) is a tiebreaker act which applies when a resident is of these contracting states. Primary judge states that Mr Pike has a “habitual abode” in both Australia and Thailand which also states the purposes of “Art4(3)(b)”“the habitual abode Test” Applying those provisions of tiebreakers. However, on the other hand, “Art 4(3)(c)” states the “personal and economic relations” test, according to which it can be stated that Mr Pike is a sole resident of Thailand.
“Vienna Convention on the Law of Treaties”, opened for signature “23 May 1969. 1155 UNTS 331, Arts 31, 32”which states the “general rule of interpretation” following the “supplementary means of interpretation”. In the case of Art 31, the context of the treaty needs to be interpreted with better faith with respect to the ordinary meaning which is termed in the treaty and also in the light of the context. Art 32 of the above law “leaves the meaning ambiguous or obscure” and “leads to a result which is manifestly absurd or unreasonable”. The articles define the treaty of the concluded international agreement done between different states in written form which is also governed by valuable international law. The respondent’s economic and personal relationships are also judged by this law. “Australian taxation Treaty” is the tax agreements with Australia and other countries which aims in preventing double taxation, and also promotes cooperation between “international tax authorities”[4]. It also includes “Bilateral superannuation agreements” which covers the details of a citizen working in other states and application for the certificate of coverage which includes “continue paying super in Australia”. Therefore, the above rules are applicable for the given cases which are being enacted in different federations of the Australian Government.
“Income Tax (International Agreements) Act 1953 (Cth)”, states agree to be a treaty with other countries as in relation to the withholding tax according to the interests derived or the dividend in relation to which the agreement is effective[5]. Moreover, according to the law “in respect of income of the year of income that commenced on 1 July 1979 and of a subsequent year of income in relation to which the agreement remains effective”. In addition to it, the assessment act meant the agreement of income from the shares but this does not include the reference of return or the debt of interest as defined in “Income Tax Assessment Act 1997”. The agreement also provides the expression “immovable property” which is under the law of Australia which includes the purpose of agreement (this also includes real property).
Application
The application of this case can be observed in “Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424” in which it has been stated that the matter involves two appeals from a judge of the court which also concerns the two aspects of commercial dealings in between the relevant parties[7]. The application states the commercial approach of cattle in the business in Indonesia and the commercial interest in “Tipperary”. The above case deals with the commercial usage of cattle. Mr Pike in this case is advised that the commissioner needs to get satisfied that the person’s usual place of work is outside the country and the person is not intended to stay in Australia.
In another case “Bywater Investments Limited v Commissioner of Taxation [2016] HCA 45; 260 CLR 169” states that directors of the appellant companies reside abroad where the meetings are held. The director in this case acted as the direction of Australian resident and controlled the appellant who made the decisions which are being implemented by the directors[9]. Double taxation agreement including “Income Tax Assessment Act 1936 (Cth), s 6(1)” has been applied for the case which states the provision of a tiebreaker. This entitles protection from Australian income tax from the agreement of double taxation. The placement of the appellant company is in Australia or abroad is the main cause of the case. Referring to this case, Mr Pike is a resident of Australia but his work life is in Thailand and the taxation law and double taxation are depicted in the case. The appellant is advised to recheck about the residence of the family and proper payment of tax. It is mentioned in this law that taxation along with paying for development of country is necessary. In this case, it is completely dependent on Mr. Pike who is responsible for doing his individual duty in Australia.
In another case, “Commissioner of Taxation v Scone Race Club Limited [2019] FCAFC 225; 374 ALR 189” the context states that the respondent has a race club which was liable to pay the “superannuation guarantee charge” according to the riding fees that are being paid to the jockeys in the relevant period[11]. “Tax Administration Act 1953 (Cth)” applies to the case. The law abides “This Act binds the Crown in each of its capacities. However, it does not make the Crown liable to a pecuniary penalty or to be prosecuted for an offence” [12]. Referring to the case, the commissioner is advised to prepare the taxation report in June every year to furnish and prepare to the Minister as stated in the law.
Another case “Harding v Federal Commissioner of Taxation [2019] FCAFC 29; 269 FCR 311” it is found that the primary judge stated that the taxpayer who is a resident of Australia has rented accommodation for the temporary purpose which is predicted as a permanent place of abode of the personnel. In this case, the primary judge established many reasons for the absence of Taxpayer followed by his intention of not returning to the country which was sufficient for terminating his citizenship in Australia[14]. This case is established with “resident or resident of Australia” as defined in “s 6” of “Income Tax Assessment Act 1936 (Cth)”.Referred to the case, Mr Pike’s citizenship was cancelled as decided by ministerial delegate because he does not go through the required residential requirement which has been specified in “Australian Citizenship Act 2007 (Cth)” [34].
In another case “Thiel v Commissioner of Taxation [1990] HCA 37; 171 CLR 338” also depicts double taxation relief abided by the law “Income Tax (International Agreements) Act 1953 (Cth)”, “s. 11E, Sched. 15 Arts. 3(1) (f), (2),7” [15]. The law depicts the international agreements for personnel working in foreign countries and the agreement of income from the shares which includes the reference of return or the debt of interest.
Conclusion
In this case, it can be concluded that being a resident of Australia, Mr Pike works for his individual purposes that he has been staying in Thailand. This rebels to the application of Article 4(3) from the “Agreement between Australia and the Kingdom of Thailand for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income”, which was signed in August 1989. Mr Pike, a resident of Thailand abided by the law of Thailand. The laws which are applied here gives the provisions of tiebreaker as the primary judge concluded that Mr Pike has been a “habitual abode” in both Australia and Thailand for economic and personal relations in both the countries. This case states that the commissioner predicts that the appellant is solely a resident of Thailand and does not pay the tax in his working years from 2009 to 2014.
Reference list
Australian Government (2018). Federal registration of Legislation. Available at https://www.legislation.gov.au/Details/C2018C00360. [Accessed on 12/01/2021]
Australian Government (2017). Federal registration of Legislation. Available at https://www.legislation.gov.au/Details/C2017C00242. [Accessed on 12/01/2021]
Australian Government (2015). Australian Citizenship Act 2007. Available at https://www.legislation.gov.au/Details/C2016C00726#:~:text=Generally%2C%20you%20become%20an%20Australian,residents%20when%20you%20are%20born.&text=The%20other%20way%20to%20become,Division%202%20of%20Part%202. [Accessed on 12/01/2021]
essed on 12/01/2021]
Jade, (2020). Federal court of Australia. Available at https://jade.io/article/766752. [Accessed on 13/01/2021]
Jade (2019). Burton v Federal Commissioner of Taxation [2019] FCAFC 141; 271 FCR 548. Available at https://jade.io/j/?a=outline&id=658900. [Accessed on 13/01/2021