ATO ID 2004/299: Assessability of income from Fiji by a resident for professional services performed wholly in Australia for Fijian entity
Date of decision: 16 March 2004
Year of income: Year ended 30 June 2004 Year ended 30 June 2005
Business line: Public Groups and International

Issue
Is income earned by an Australian resident taxpayer, who is contracted by an entity in Fiji to provide professional services to the entity and who works remotely from Australia, assessable under subsection 6-5(2) of the Income Tax Assessment Act 1997 (ITAA 1997)?

Decision
Yes. The income earned by an Australian resident taxpayer, who is contracted by an entity in Fiji to provide professional services to the entity and who works remotely from Australia, is assessable under subsection 6-5(2) of the ITAA 1997.

Facts
The taxpayer is a resident of Australia for income tax purposes. The taxpayer has a contract with an entity in Fiji to provide professional services to the entity. The taxpayer will provide their services wholly in Australia. The taxpayer is not an employee of the entity in Fiji. The taxpayer will receive a fee for their professional services from the entity in Fiji.

Reasons for decision
Summary: Subsection 6-5(2) of the ITAA 1997 provides that the assessable income of an Australian resident taxpayer includes ordinary income derived directly or indirectly from all sources, whether in or out of Australia, during the income year. Income earned in respect of professional services is ordinary income for the purposes of subsection 6-5(2) of the ITAA 1997. In determining liability to tax on Australian sourced income paid to a taxpayer by an entity of a foreign country, it is necessary to consider not only the income tax laws but also any applicable double tax agreement contained in the International Tax Agreements Act 1953 (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 32 to the Agreements Act contains the double tax agreement between Australia and Fiji (the Fijian Agreement). The Fijian Agreement operates to avoid the double taxation of income received by Australian and Fijian residents. Article 14(1) of the Fijian Agreement provides that income derived by a resident of Australia in respect of professional services or other independent activities of a similar character shall be taxable only in Australia. However, if such an individual: so much of that income derived by the individual may be taxed in Fiji. Article 14(3) of the Fijian Agreement provides that 'professional services' includes services performed in the exercise of independent scientific, literary, artistic, educational or teaching activities, as well as in the exercise of independent activities of physicians, engineers, architects, dentists and accountants. Although the results of the taxpayer's work are exploited in Fiji, the taxpayer provides their professional services wholly from Australia and does not perform any activities in Fiji. Accordingly, none of the paragraphs in Article 14(1) of the Fijian Agreement apply. Therefore, the income received by the taxpayer is taxable only in Australia under Article 14(1) of the Fijian Agreement. As the taxpayer is a resident of Australia for income tax purposes, the income received by the taxpayer from the provision of professional services to a Fijian entity is assessable under subsection 6-5(2) of the ITAA 1997.

Legislative references: Income Tax Assessment Act 1997 subsection 6-5(2)
Subject references: Double tax agreements Fiji Income International tax