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Is the Australian sourced Public Sector Superannuation (PSS) Scheme pension income derived by a resident of Spain assessable under subsection 6-5(3) of the Income Tax Assessment Act 1997 (ITAA 1997)?

No. Although the Australian sourced PSS Scheme pension paid to a resident of Spain is ordinarily assessable under subsection 6-5(3) of the ITAA 1997, Article 19(2)(b) of the Spanish Agreement contained in Schedule 39 of the International Tax Agreements Act 1953 (the Agreements Act) applies, and the pension is not taxable in Australia.

The taxpayer is a resident of Australia, but will move to Spain in the future to reside there on a permanent basis.

From the date of taxpayer's arrival in Spain (to live there permanently), the taxpayer will be a resident of Spain for taxation purposes.

The taxpayer is a citizen of Spain.

In Australia, the taxpayer was an employee of the Australian Public Service.

The taxpayer receives a pension from the Public Sector Superannuation (PSS) Scheme in respect of the taxpayer's employment with the Australian Public Service.

Subsection 6-5(3) of the ITAA 1997 provides that the assessable income of a non-resident taxpayer includes ordinary income derived directly or indirectly from all Australian sources during the income year.

Pensions are ordinary income for the purposes of subsection 6-5(3) of the ITAA 1997.

In determining liability to Australian tax on Australian sourced income received by a non-resident, it is necessary to consider not only the income tax laws but also any applicable double tax agreement contained in the Agreements Act.

Section 4 of the Agreements Act incorporates that Act with the ITAA 1997 so that those Acts are read as one.

Schedule 39 to the Agreements Act contains the double tax agreement between Australia and the Kingdom of Spain (the Spanish Agreement). The Spanish Agreement operates to avoid the double taxation of income derived by Australian and Spanish residents and also to prevent fiscal evasion with respect to taxes on income.

Paragraph (2) of Article 19 of the Spanish Agreement deals with Government Service pensions. Subparagraph (2)(a) of Article 19 states that a pension paid by Australia in respect of services rendered to Australia shall be taxable in Australia. This includes ComSuper pension payments, such as the PSS Scheme pension payments, to a person who was employed in the Australian Public Service. However, subparagraph (2)(b) of Article 19 provides that such pensions shall be taxable only in Spain if the individual is a resident of, and a citizen or national of, Spain.

Therefore, as a resident and citizen of Spain, the pension income derived by the taxpayer from the PSS Scheme in Australia is not assessable under subsection 6-5(3) of the ITAA 1997.