ATO Interpretative Decision
ATO ID 2001/21 (Withdrawn)
International tax
International tax: Inclusion of Arrival and Departure DatesFOI status: may be released
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This ATO ID is withdrawn. The views expressed in the ATO ID are current and is included in Residency - the 183 day test (QC 17139).This document has changed over time. View its history.
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Issue
Whether the days of arrival in and departure from a country are included in the calculation of the taxpayer's 183 day period of presence in that country for the purposes of Article 11 (or similar), of a Double Tax Agreement under the International Tax Agreements Act 1953.
Decision
The days of arrival in and departure from a country are included in the calculation of the taxpayer's 183 day period of presence in that country for the purposes of Article 11 (or similar), of a Double Tax Agreement under the International Tax Agreements Act 1953.
Facts
The taxpayer requires confirmation on the correct method of calculating the 183 day period specified at Article 11 of the Australian-Japanese Double Tax Agreement.
The taxpayer contends that verbal advice has been received that: for the purpose of the 183 day period of presence in Australia, the day of arrival in and the day of departure from Australia are to be disregarded when determining the number of days a visitor has stayed in Australia.
Reasons For Decision
Days of arrival in and departure from a country are to be included in the calculation of the 183 day period of presence in that country for the purposes of Article 11 of a Double Tax Agreement concluded between Australia and a foreign country.
The administration of Australia's double tax agreements is guided by the Organisation for Economic Co-operation and Development's 1992 Model Tax Convention on Income and on Capital.
Article 15 of the 1992 Model Convention, the model for Article 11 (or similar) of Australian Double Tax Agreements, sets out the taxing rights of Contracting States in respect of certain employment income derived by residents of those States. Where the remuneration is derived by a resident of one of the Contracting States from employment in the other Contracting State the extent of the taxing rights may depend, inter alia, on whether the visitor was or was not present in the other State for more than 183 days in the relevant period.
The official view of the OECD is that the 183 day period is to be calculated by the 'days of physical presence' method. Paragraph 5 of the commentary on Article 15 states:
'[u]nder this method the following days are included in the calculation: part of a day, day of arrival, day of departure and all other days spent inside the State of activity.
'... However, days spent in the State of activity in transit in the course of a trip between two points outside the State of activity should be excluded from the computation.
'... A day during any part of which, however brief, the taxpayer is present in a State counts as a day of presence in that State for the purposes of computing the 183 day period.'
In determining the '183 day period of presence' required by Article 11 (or similar) of a Double Tax Agreement, it is appropriate to follow the OECD's position on the construction of a 'day' for the purposes of Article 15 of the 1992 Model Convention.
Date of decision: 11 August 1997
Legislative References:
International Tax Agreements Act 1953
ITAA53
Other References:
Organisation for Economic Co-operation & Development's 1992 Model Tax Convention on Income and on Capital.
Keywords
Double Tax Agreements
Organisation for Economic Co-operation & Development (OECD)
ISSN: 1445-2782
| Date: | Version: | |
| 11 August 1997 | Original statement | |
| You are here | 22 September 2017 | Archived |
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