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Is income derived by a resident Australian taxpayer, contracted to provide consultancy services to an organisation in Indonesia, assessable under subsection 6-5(2) of the Income Tax Assessment Act 1997 (ITAA 1997)?

Yes. The income received by a resident Australian taxpayer, contracted to provide consultancy services to an organisation in Indonesia, is assessable under subsection 6-5(2) of the ITAA 1997.

The taxpayer is an Australian resident for tax purposes.

The taxpayer has been contracted by an organisation in Indonesia to provide consultancy services as a technical expert for a period of six months.

The taxpayer is a fixed term contractor and not an employee of the Indonesian organisation.

The taxpayer will be undertaking work from their base in Australia and travel to Indonesia and South East Asia when required.

The taxpayer will not be required to relocate in view of the short term nature of their engagement and will not take any breaks during the period of the contract.

Subsection 6-5(2) of the ITAA 1997 provides that the assessable income of a resident taxpayer includes ordinary income derived directly or indirectly from all sources, whether in or out of Australia, during the income year.

However, in determining any liability to Australian tax it is necessary to consider not only the income tax laws but also any applicable tax treaty contained in the International Tax Agreements Act 1953 (Agreements Act) that exists between Australia and Indonesia

Section 4 of the Agreements Act incorporates that Act with the Income Tax Assessment Act 1936 (ITAA 1936) and ITAA 1997 so that those Acts are read as one. The Agreements Act effectively overrides the ITAA 1936 and the ITAA 1997 where there are inconsistent provisions (except in some limited situations).

Schedule 37 to the Agreements Act contains the tax treaty between Australia and Indonesia (the Indonesian Agreement). The Indonesian Agreement operates to avoid the double taxation of income received by Australian and Indonesian residents.

Article 14 of the Indonesian Agreement provides that income derived by an individual who is a resident of Australia in respect of professional services, or other independent activities of a similar character, shall be taxable only in Australia unless the taxpayer

Has a fixed base regularly available to them in Indonesia for the purpose of performing their activities. If the taxpayer has such a fixed base, the income may be taxed in Indonesia but only so much of it as is attributable to that fixed base.

The individual is present in Indonesia for a period or periods exceeding 120 days in any period of 12 months, in that case, so much of the income as is derived from the individuals activities in Indonesia also may be taxed in Indonesia.

To assist in the interpretation of the Indonesian Agreement, reference is made to Taxation Ruling TR 2001/13 - Income tax: Interpreting Australia's Double Tax Agreements.

Under this ruling, regard may be had to the OECD Model Tax Convention on Income and on Capital (the OECD Model) and the Commentaries on the Articles of the OECD Model (the OECD Commentary) including any subsequent revisions to that OECD Commentary to assist in the interpretation of double tax agreements. This approach was also accepted by the High Court in Thiel v. Federal Commissioner of Taxation (1990) 171 CLR 338; 90 ATC 4717; (1990) 21 ATR 531, the High Court accepted that the OECD Model and the Commentaries on the Articles of the OECD Model (the OECD Commentary) may be relevant to the interpretation of tax treaties based on the OECD Model. The High Court approved recourse to the OECD Model and the OECD Commentary under Article 32 of the Vienna Convention (see paragraph 102 of Taxation Ruling TR 2001/13). Unless specified otherwise, references to the OECD Model and Commentary are to the version published on 15 July 2005.

Article 14 of the Indonesian Agreement is the same in substance as the former Article 14 of the OECD Model published on 23 October 1997.

Paragraph 2 of 'Commentary on Article 14' in the OECD Model defines the concept of professional services to include professional activities of an 'independent' nature. Thus the provision of consulting services by the taxpayer is considered independent personal services for the purposes of Article 14 of the Indonesian Agreement.

Paragraph 4 of 'Commentary on Article 14' in the OECD Model suggests that a fixed base is a centre of activity of a fixed or a permanent nature, and would include a physician's consulting room or the office of an architect or lawyer.

The taxpayer will not have an office or any other business premises in Indonesia.

The taxpayer will derive income from their consultancy. As the taxpayer is a resident of Australia for tax purposes, and does not have a fixed base (such as an office) in Indonesia, Article 14 of the Indonesian Agreement provides that this income will be assessable in Australia, and as a consequence, the consultancy income will not be taxed in Indonesia.

Therefore, the income the taxpayer receives from consulting in Australia will be assessable under subsection 6-5(2) of the ITAA 1997.