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Public International Law: Australian International Tax Law

This guide will help you find resources for researching public international law.

AUSTRALIAN INTERNATIONAL TAX LAW

This page is about Australian international tax agreements and their incorporation in domestic legislation. It intended to be read with the main International Tax Law page in this guide, which provides definitions and information about finding and comparing international tax agreements, cases etc for all countries.

For Australian tax law more generally, see our Australian Tax Law Research Guide.

For tax law in other countries, and for tools to compare tax law across jurisdictions, see our Global & Comparative Tax Law Research Guide.

Starting your tax law research - Research Strategy

When starting your research, begin with:

  • subject overviews such as those listed in the box below; and
  • scholarly secondary sources. We recommend starting with recent books. Most Australian general tax textbooks will have a chapter on international tax, which will provide an introduction to the subject and refer to legislation, significant cases and ATO tax rulings. As tax law is constantly changing, make sure you use only recently published books. These will often be in the High Use Collection in the Law Library.

If you are looking for information on a specific international tax law topic, we recommend academic journal articles - see the Journals and Journal Articles box below.

Introductions & Research Guides

An overview of all Australian International Tax Agreements, including Double Tax Agreements (DTAs - also known as Tax Treaties, Tax Conventions and Income Tax Treaties) and Australian Tax Information Exchange Agreements (TIEAs), is available on the Australian Taxation Office (ATO) website.

Detailed information about Australian Double Tax Agreements (DTAs)  is available in ATO Taxation Ruling TR 2001/13: Income tax: Interpreting Australia's Double Tax Agreements

C John Taylor,Some Distinctive Features of Australian Tax Treaty Practice: An Examination of Their Origins and Interpretation' (2011) 9(3) eJournal of Tax Research: Special Edition: Double Tax Agreements in the Asia Pacific‚Äč 294 (open access)

Colin Fong and Dale Pinto, 'A research guide to international tax: an Australian perspective' (2006) 9(1) Journal of Australian Taxation 82 (open access)

Journals & Journal Articles

See the Journals & Journal Articles box on the International Tax Law page of this Guide.

We also recommend using the following databases to find Australian journal articles, irrespective of the journals in which they are published:

 

INDIVIDUAL AUSTRALIAN TAX JOURNALS that will include articles on Australian international tax law include the following:

Finding Australian International Tax Agreements

All full text international tax agreements to which Australia is a party, and information about country, status, withholding tax rate limits, and Australian domestic implementation is available on the Australian Treasury Tax Treaties website.

The official versions of all DTAs and TIEAs are part of the Australian Treaty Series (ATS), at Australian Treaties Library >> Subjects >> Business & Finance >> Taxation.

Australian DTAs and TIEAs are also listed on the Department of Foreign Affairs and Trade Treaties database. This database also provides Australian Treaty Series citations, and links to the full text in the Australian Treaties Series.

Article by Article commentary on Australian International Tax Agreements

Up to date and detailed article-by-article commentary on all DTAs entered into by Australia, with reference to relevant ATO rulings, determinations and cases, is available in the following databases (UniMelb staff & students):

Comparing International Agreements

A useful feature of the Australian International Tax Agreements Commentary on CCH Intelliconnect is Treaties Compared, which provides a topic breakdown of Australia's DTAs. Tables list the types of income and taxpayers covered in the DTAs, followed by the basis of taxation for that type of income/taxpayer for each country.   

For more detailed and sophisticated Article by Article comparison tools, see the Tools for Comparing International Agreements box on the International Tax Law page in this Guide.

Cases

To find law reports and cases databases that include only international tax law cases, see the caselaw research tools in the Finding International Tax Law Cases box on the International Tax Law page of this Guide.

In addition, there are several Australian specialist tax report series and databases that include cases on all tax matters, including international tax (UniMelb staff & student access):

  • Australian Tax Decisions (1927-1969) and Australian Tax Cases (ATC) (1969 to current) on CCH Online Australia
  • Australian Tax Reports (ATR) (vol 1 (1969)) to current) on WestlawAu
  • Checkpoint - from Thomson Reuters. Checkpoint Cases includes recent unreported GST cases and unreported tax cases that will end up in  Australian Tax Reports. These cases can be searched, or browsed by eg: year, court etc. To browse, scroll to the bottom of the search screen.
  • See also up to date annual tax casebooks, such as:

The above reports and databases have selective coverage - that is, not all cases are included. To find all Australian international tax cases, and to find the MOST RECENT cases, use JADE's Advanced Search (open access) to search for cases on, for example, a particular DTA, or in a particular court or jurisdiction.

 

ATO Guidance & Rulings

The Australian federal tax system is administered and enforced by the Australian Taxation Office (ATO). The ATO regularly issues authoritative interpretative guidance and rulings on tax related legislative provisions. More on guidance (including interpretative decisions) and rulings is available on the ATO Advice and Guidance website.
 
Detailed information about Australian Double Tax Agreements (DTAs)  is available in ATO Taxation Ruling TR 2001/13: Income tax: Interpreting Australia's Double Tax Agreements.
 
For ATO rulings, determinations, guidelines, interpretative decisions, decision impact statements etc on all international tax matters, use the ATO's Legal Database. You can search this database, or browse it - for example, select Browse >>Browse All >>Topic >>International Issues >>DoubleTax Agreements.
 
                              

Australian Domestic Legislation - tax Acts and Acts implementing International Tax Agreements

DOUBLE TAX AGREEMENTS & TAX INFORMATION EXCHANGE AGREEMENTS

Income tax liabilities are primarily regulated by the Income Tax Assessment Act 1936 (Cth) and Income Tax Assessment Act 1997 (Cth). These Acts operate together, and provide for situations where international tax dealings arise - including foreign residents with Australian source income, Australian residents with foreign source income, as well as transfer pricing and thin capitalisation anti-avoidance regimes. 

Double tax agreements (DTAs) to which Australia is a party may override the provisions of the domestic legislation (s4(1) of the International Tax Agreements Act 1953 (Cth))

Each of Australia's DTAs and TIEAs are bilateral agreements between Australia and another country under which Australia undertakes to apply its taxation laws in accordance with the terms of the agreement it has negotiated. Australia meets its obligations under these agreements by incorporating them directly into our domestic law. Australia's DTAs and TIEAs are given the force of law domestically by virtue of s4(1) of the International Tax Agreements Act 1953 (Cth).

Australian DTAs and TIEAs thus have a dual character and operate simultaneously on two levels. They first of all represent obligations that Australia has undertaken at the international law level, and on which only the other country may directly rely. Once they are implemented by Australian legislation they also represent domestic law obligations, on which individual taxpayers may rely before Australian courts. The following diagram demonstrates this dual character in relation to DTAs.

Image sourceATO Taxation Ruling TR 2001/13

Note: Prior to the enactment of the International Tax Agreements Amendment Act (No. 1) 2011 (Cth) (Act No 45 of 2011), DTAs and TIEAs were contained in schedules to the International Tax Agreements Act 1953. The amending Act removed all of these agreements from the schedules to the Act, with the exception of the 'Taipei Agreement', which is a document of less than treaty status, and remains in the Act as Schedule 1. Following the removal of the schedules by the amending Act, the official text of DTAs and TIEAs are contained in the Australian Treaty Series

FATCA

The US Foreign Account Tax Compliance Act (FATCA) (26 USC §§ 1471-1474) was enacted in March 2010 to improve compliance with U.S. tax laws. FATCA imposes certain due diligence and reporting obligations on foreign Financial Institutions. In 2014 Australia and the U.S. signed an intergovernmental agreement to implement FATCA - the Australia-US Intergovernmental Agreement (IGA) to improve international tax compliance and to implement FATCA (the US Foreign Account Tax Compliance Act).

More on the FATCA on the ATO website.

FATCA was incorporated into Australian domestic legislation in 2014 by the Tax Laws Amendment (Implementation of the FATCA Agreement) Act 2014 (Cth), which amended the Taxation Administration Act 1953 (Cth) to include a new Division 396 - FATCA - in Schedule 1.

THE CONVENTION ON MUTUAL ADMINISTRATIVE ASSISTANCE IN TAX MATTERS

In 2012 Australia became a signatory to the Convention on Mutual Administrative Assistance in Tax Matters - a multilateral agreement designed to promote international co-operation for a better operation of national tax laws, while respecting the fundamental rights of taxpayers. The Convention provides for all possible forms of administrative co-operation between the parties in the assessment and collection of taxes, in particular with a view to combating tax avoidance and evasion. More on the OECD Convention website, including the full text of the Convention and the list of over 100 participating counties.

The Convention has been incorporated into Australian domestic law by the Tax Laws Amendment (Implementation of the Common Reporting Standard) Act 2016 (Cth), which amends Schedule 1 of the Taxation Administration Act 1953 (Cth) by inserting a new Subdivision, 'Subdivision 396-C - Common Reporting Standard' into 'Part 5-25 - Record-keeping and other obligations of taxpayers'. More on the Convention and the Australian adoption of it in the EM that accompanied the Tax Laws Amendment (Implementation of the Common Reporting Standard) Bill 2015 (Cth).

OTHER AGREEMENTS

Use the Australian Treasury Tax Treaties website to see the Australian domestic legislation that implements other international agreements, such as Estate Gift Tax Treaties and East Timor Agreements.