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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 .

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 .

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.

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.