‘Fair(ness) Go(ne)’? Foreigner Surcharge Taxes and Tax Non-Discrimination

All Australian mainland states and territories, except the Northern Territory, levy additional taxes on the ownership of Australian real property by non-citizens who are not permanent residents. This practice sits uncomfortably with the reality of relevantly expansive non-discrimination clauses contained in a number of international tax agreements to which Australia is a party.

International tax treaties and tax non-discrimination

The provisions of international tax treaties entered into by Australia that are mentioned in section 5(1) of the International Tax Agreements Act 1953 (Cth) have, under the terms of the section, the force of Commonwealth law.

There are more than 40 such treaties at present, 12 of which contain tax non-discrimination clauses which are, therefore, incorporated into Australian domestic law. However, it should be noted that the non-discrimination clause in the 1982 United States Convention is not incorporated into Australian domestic law.

By way of example, the tax non-discrimination clause in the United Kingdom Convention relevantly provides that:

Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, in particular with respect to residence, are or may be subjected.

Unlike the United Kingdom Convention, the South Africa Double Taxation Agreement expressly states that, for the purposes of its tax non-discrimination clause:

the taxes to which the Agreement shall apply are taxes of every kind and description imposed on behalf of the Contracting States, or their political subdivisions or local authorities.

Expansive non-discrimination clauses along similar lines may also be found in Australia’s international tax agreements with:

• New Zealand;
• Finland;
• Germany;
• Japan;
• Norway;
• India; and
• Switzerland.

Are Australia’s sub-national, foreigner-specific property taxes consistent with its tax treaties?

In Addy v FCT, the High Court of Australia observed, in relation to the United Kingdom Convention’s tax non-discrimination clause, that:

Article 25(1), as well as Art 25(5), make explicit that foreign residency is a permissible basis for imposing other or more burdensome tax requirements on foreign nationals — accordingly, if Ms Addy were a non-resident ‘working holiday maker’, Art 25(1) would offer no relief. But this is of no assistance in the present case: it is precisely because of the Commissioner’s initial acceptance of Ms Addy’s status as an Australian resident for tax purposes that Ms Addy’s objection to her assessment was chosen by the parties as a ‘test case’ to determine the effect of Art 25(1). With respect to tax residency during the relevant period, at least, there is no doubt that Ms Addy was ‘in the same circumstances’ as an Australian national who was also a tax resident.

Herein lies the potential issue with the current Australian sub-national, foreigner-specific property-related taxes: the residency reference in these taxes centres on immigration residence (namely, Australian citizenship or permanent resident visa status), whereas the residency reference in the treaties is to residence for income taxation purposes, which is more transitory in nature.

So, a non-Australian national who does not hold an Australian permanent residence visa but who, nevertheless, is a resident of Australia for income tax purposes (as was the case in Addy) could be subject to the foreigner-specific sub-national property taxes mentioned above, whereas an Australian citizen would never be, regardless of his or her Australian income tax residency status.

It is difficult to see how this does not contravene the text, context and purpose of the non-discrimination clauses, particularly in light of the High Court’s approach in Addy.

Relevant, therefore, is section 109 of the Australian Constitution, which stipulates that:

When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

What then, of nationals from countries without a relevant non-discrimination clause?

What then, of the position of nationals from countries with no relevant tax treaty or no relevant tax non-discrimination clause? Are they, due to the absence of applicable treaty protection, still subject to the taxes in question?

In other words, could the relevant sub-national, foreigner-specific property taxes potentially be ‘read down’ or ‘partially disapplied’ so as to be taken to encompass only nationals of those countries without a relevant tax treaty non-discrimination clause?

In Clubb v Edwards, it was observed that:

The technique of partial disapplication cannot be used if it would alter a statute’s general policy or scheme or the specific policy or purpose of the relevant provision. To do so would cross the line between adjudication and legislation. One way in which the general policy or scheme of a statute or a provision could be altered is where the partial disapplication would lead to a result that contradicts or alters any policy of the statute.

In this regard, the relevant second reading speeches and explanatory memoranda reveal a policy intention to relevantly tax foreigners generally, as a market-intervention measure aimed at increasing the cost associated with such persons taking a stake in property, to therefore favour non-foreigners in this regard.

It would, therefore, seem that judicial reading down or partial disapplication of the provisions in question to somehow interpretively ‘carve out’ nationals of countries with applicable treaty protection, could be somewhat problematic.

Where to from here?

This post has identified potential incompatibilities vis-à-vis the foreigner-specific property taxes enacted in many Australian jurisdictions, and the expansive non-discrimination clauses in various international tax treaties entered into by the Australian government.

While at least one jurisdiction, namely New South Wales, has recognised the imperative to, accordingly, discontinue the collection of relevant taxes from nationals who are protected by the clauses in question, all jurisdictions are yet to, perhaps for political reasons, amend their legislation to put the collection of tax from non-protected nationals beyond the constitutional doubt that has been identified in this post.

While the issue of ongoing collection from non-protected nationals could likely be addressed by expressly providing in the state or territory legislation for the ‘carving out’ of protected nationals, whether such amendments could validly be made retrospective, so as to potentially stymie some private law claims that might otherwise arise (namely, ones from non-protected nationals), is another matter entirely and attended with some uncertainty.

As an alternative option, possibly: (1) tax could be increased for all foreigners and non-foreigners alike, by the amount of what would otherwise be the surcharge; and (2) all non-foreigners could be eligible to apply for a grant from the government that covers this additional amount.

 

Editor’s note: The blog was updated on 16 November 2023 to include an alternative policy suggestion.