This Ruling, issued Wed 11.6.2014, considers the application of the requirement in s 23AH of the ITAA 1936 that a company “carry on a business at or through a permanent establishment (PE)”, in circumstances where a company is taken to have a PE:
- in relation to substantial equipment under para (b) of the definition of PE in s 6(1) of the ITAA 1936; or
- under an Article in one of Australia’s tax treaties that deems an enterprise to have a PE if it has substantial equipment in a contracting State.
The Ruling states that where a company is taken to have a PE in relation to substantial equipment (by domestic law or tax treaty), the foreign income derived will not be ‘non-assessable non-exempt’ (NANE) income under s 23AH, unless the income is derived in actually carrying on a business at or through the PE in the foreign jurisdiction.
It says where the s 6(1) definition of PE applies or where the definition of PE under a tax treaty applies, a company does not automatically satisfy the requirements in s 23AH. The Ruling indicates that whether a company is actually carrying on a business at or through the PE is a question of fact and degree determined by the circumstances of each case. The Ruling contains 3 examples and was previously issued as Draft Taxation Ruling TR 2013/D8. It is largely unchanged from the Draft.
DATE OF EFFECT: Applies to years of income commencing both before and after its date of issue.
[LTN 110, 11/6/14] [LTN 111, 12/6/14]