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The impact of NDAs on state and federal taxes
Published on 01 Jun 23 by "TAXATION IN AUSTRALIA" JOURNAL ARTICLE
The High Court’s decision in Addy v FCT has drawn greater attention to the “non-discrimination article” in certain Australian double tax agreements. Australia is in the process of extending its treaty network and the article is an expected feature of future agreements, increasing its significance. The article prohibits each country from engaging in “tax discrimination” by imposing more burdensome taxation on nationals of the other country than is imposed on other taxpayers in the same circumstances. Importantly, the article potentially applies to state taxes as well as federal taxes. For example, Revenue NSW recently determined that “surcharge purchaser duty” and “surcharge land tax” will no longer be imposed on nationals of certain countries with double tax agreements with Australia containing a non-discrimination article. The authors discuss the history, structure and key elements of the article. They consider recent developments and implications in its application to both state and federal taxes.
Author profiles
Michael Bearman CTA
Michael Bearman, CTA, has 35 years’ experience representing clients in taxation matters. He is a Chartered Tax Advisor and has sat on numerous Tax Institute committees over many years. He has been consistently ranked by Doyles Guide as Melbourne’s one of Melbourne’s pre-eminent taxation barristers since 2016. A regular speaker and writer, Michael’s most recent publications are Taxing matters: Judgments and settlements, Victorian Bar News, Issue 166 (2020) and Fifty shades of Greig: the spectrum of taxpayers in share trading, with P Klank, Taxation in Australia, (2020) Vol. 50(5). - Current at 21 May 2024
Piotr Klank CTA
Piotr is a commercial barrister specialising in revenue law. He graduated from the University of Queensland with a Bachelor of Commerce and a Bachelor of Laws (Hons) in 2005, and obtained a Master of Laws from the University of Melbourne in 2009. Prior to joining the Bar he was a solicitor with Clayton Utz, MinterEllison and PwC. Piotr has presented and published widely on tax matters for The Tax Institute, the International Fiscal Association, the IBFD and Bloomberg, among others. He is on the Taxation Committee of the Law Council of Australia, an honorary fellow at the University of Melbourne and a member of several tax discussion groups. He appreciates the opportunity to look at issues where there are no clear or simple answers. - Current at 27 October 2020
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