By Jason Chang Tax Partner, KPMG
Richard Krever Professor, School of Law, Deakin University
Is Hong Kong part of China for
tax treaty purposes?
THE PRINCIPLES DERIVED FROM
A commentary on EDWARDS
Edwards v The The recent decision of Rip J of the Tax
Court of Canada in Edwards v The Queen
Queen (Tax Court may open the door to new tax planning
opportunities in both Canada and, once the
of Canada, 27 June decision is fully digested by Australian
practitioners, in Australia. The issue to be
2002) and the decided in the case was whether Hong
Kong was part of the People’s Republic of
implications for China (the “PRC”) for the purpose of the
Canada–China double tax agreement and
Australian tax law the Tax Court of Canada held that it was
not. The ramifications of the reasoning in
the case go far beyond this simple issue,
however, and cast new doubts as to
whether Australian authorities are correct in
asserting that Hong Kong is not part of the
PRC for purposes of the Australia–China
double tax agreement.
The taxpayer in Edwards was a Canadian
resident who worked as a pilot for a
subsidiary of Cathay Pacific Airlines, flying
between Hong Kong and Canada. He
claimed protection from Canadian taxation
on his employment income on the basis of
Article 15(3) of the Canada–China treaty
which provided that “remuneration in
respect of an employment exercised
aboard a ship or aircraft operating in
international traffic by an enterprise of a
Contracting State shall be taxable only in
that Contracting State”. There was no
disagreement as to the taxpayer’s claim
that if this provision applied he would be
exempt from Canadian taxation on his
salary and the issue thus turned on
whether the Canada–China treaty (and
thus Article 15(3) of that treaty) applied to
employment income derived in Hong Kong.
The taxpayer’s contention that Hong Kong
was part of China for purposes of the
62 The Tax Specialist • Volume 6 No 2 • October 2002
Canada–China double tax agreement was
not shared by any of the governments
relevant to the treaty. All three of the
Canadian, Chinese and Hong Kong
governments took the position that Hong
Kong was not part of China for tax treaty
purposes. While this was not decisive of
the issue – the taxpayer was entitled to rely
on what the tax treaty said, not what the
parties to the treaty might have wished it
had said – it did give a fair indication of
hurdles facing the taxpayer in his quest.
The taxpayer put forward several argu-
ments in favour of his position that the
Canada–China treaty applied to Hong
Kong and the Canadian revenue
authorities responded with a number of
counter arguments. Some of the
arguments turned on the actual wording of
the Canada–China treaty. To the extent the
Australia–China treaty adopts different
words, a different result might apply in
Australia with respect to its double tax
agreement with China.
Other arguments addressed in the
decision are based on a more fundamental
analysis of the status of Hong Kong, and
these aspects of the case may have direct
relevance to the question of whether Hong
Kong is part of China for Australian treaty
purposes. They may, it is suggested, form
the basis for a result in Australia opposite
to the conclusion in Edwards.
THE CANADA–CHINA TREATY
ARGUMENTS
The definition of China
One of the principal arguments relied on
by the Canadian tax authority was on its
face the simplest of the lot – the definition
of “China” in the treaty did not include

Hong Kong. “China” is defined in Article
3(1)(b) the Canada–China treaty as the
territory of the PRC, including its territorial
sea, in which “the laws relating to Chinese
tax apply.” Thus, whether or not Hong Kong
is part of the China for purposes of the
treaty turned on whether “the laws relating
to Chinese tax” apply in Hong Kong.
While “the laws relating to Chinese tax” is
not defined as such in the treaty,
Article 2(1)(b) of the Canada–China treaty
states that the taxes to which the
Agreement applies are, in the case of the
PRC:
“(i) the individual income tax;
(ii) the income tax concerning joint
ventures with Chinese and foreign
investment;
(iii) the income tax concerning foreign
enterprises; and
(iv) the local income tax;
(hereinafter referred to as “Chinese tax).”
The closing words of Article 2(1)(b) would
appear to restrict the meaning of “laws
relating to Chinese tax” in Article 3(1)(b) to
laws setting out the four taxes enumerated
in Article 2(1)(b). However, this restriction
might be overcome by Article 2(2) which
extended the operation of the treaty to
“any identical or substantially similar
taxes” which are imposed after the date of
signature of the treaty. Thus, if none of
those four taxes applied in Hong Kong and
no similar taxes applied in Hong Kong, the
laws relating to Chinese tax would not
apply in Hong Kong and Hong Kong would
be excluded from the definition of China
for purposes of the treaty.
The four taxes referred to in Article 2(1)(b)
are not named by reference to particular
Acts or pieces of legislation. It is thus
arguable that the references are not to
specific Chinese tax laws but rather to
generic descriptions of types of taxes and
so long as a tax of that type applied in
Hong Kong, the definition of China could
include Hong Kong. On the other hand,
the descriptions of the types of taxes in
Article 2(1)(b) are sufficiently specific to
make it clear that Chinese drafters had
particular tax laws in mind when the
definition of Chinese taxes was drafted.
Rip J opted for the second interpretation
and identified the four particular taxes he
The Tax Specialist • Volume 6 No 2 • October 2002
Is Hong Kong part of China for tax treaty purposes?
concluded were covered by Article 2(1)(b) question is whether the law that imposed
and the statutes giving rise to those taxes. profits tax on Cathay Pacific’s subsidiary
He also concluded neither the Hong Kong was a law of China.
salaries tax nor the profits tax were
The ordinance which imposed profits tax
“substantially similar” taxes to the PRC
on Cathay Pacific was a law of Hong Kong
taxes, primarily because the former are
long before the city became a Special
territorial taxes while the latter assess
Autonomous Region of the PRC. To show
residents on the basis of world-wide
that this law was a law of China, the
income. Thus, he suggested, neither the
taxpayer would have had to show that a
taxation laws of China nor substantially
law of Hong Kong is ipso facto a law of the
similar laws applied in Hong Kong and
PRC. The basis for such an argument
Hong Kong was thus not part of China for
would be that the power of the Hong Kong
purposes of the Canada–China treaty.
government to make laws or to continue to
Interestingly, the basis for the conclusion
apply laws enacted in Hong Kong prior to
by Rip J that Hong Kong profit tax laws
incorporation into the PRC is a delegated
were not substantially similar to Chinese
power so when Hong Kong makes a law or
income tax laws (the territorial base of the
applies a previous law, it does so on
former and the world-wide base of the
later) conveniently ignored the fact that in behalf of the PRC.
the case of a non-resident such as Mr There is no doubt that the Chinese
Edwards, a territorial tax and a world-wide government went to great lengths to
income tax have exactly the same reach. bestow power upon the Hong Kong
government to act separately from the
Employment Aboard an Aircraft
central government of the PRC. The
Operated by a Resident of China
question is whether these measures
Article 15(3) of the Canada–China treaty amount to a grant of independent law-
exempts employment income from making power or are merely a delegation
taxation in one Contracting State where of law-making power.
the employment is exercised aboard an
In the former case, it could be argued that
aircraft operating in international traffic by
Hong Kong laws adopted after the
an enterprise of the other Contracting
resumption of Chinese sovereignty do not
State. Thus, for Mr Edwards to argue
become laws of China and further that
successfully that Canada was prevented
previously-enacted Hong Kong laws which
from taxing his employment income, he
continue to be enforced after Hong Kong’s
would have to first show that a flight
return to China also never become laws of
operated by a subsidiary of Cathay Pacific
China. In the later case, it could be argued
is a flight operated by an enterprise of
that both types of laws are automatically
China. An “enterprise of a Contracting
laws of China since the power of Hong
State” is defined under Article 3(1)(g) of
Kong to make or enforce laws derives
the treaty to mean “an enterprise carried
directly from a grant of power by China.
on by a resident of a Contracting State”.
Thus, Cathay Pacific and its subsidiary The distinction is similar to that in Australia
would be enterprises of China only if they between a State law, which has indepen-
were residents of China. dent authority because it is based on a
constitutional grant of power to the State
Is a Hong Kong company a resident of
governments, and a city law, which has
China? Resident of a Contracting State is
authority only because a State government
defined in Article 4(1) of the
chooses to delegate some of its
Canada–China treaty to mean a person
constitutionally granted law-making powers
who is liable to tax under the laws of the
to subordinate entities. The Commonwealth
State by reason of his domicile, residence,
government has no power to revoke the
place of head office, place of management
authority of State governments to make
or any other criterion of a similar nature.
laws in their constitutionally-protected
Rip J had no difficulty concluding that
areas of power but a State government can
Cathay Pacific’s liability to tax on its profits
under the Hong Kong Internal Revenue (and often does!) at will withdraw the
Ordinance was based on criteria similar to powers of cities to make laws in areas
those listed in Article 4(1). A separate previously assigned to them.
63
 Jason Chang & Richard Krever
Upon its return to China, Hong Kong
became a “Special Administrative Region” of
China. Article 31 of the Constitution of the
People’s Republic of China authorises the
establishment of Special Adminis-trative
Regions on the terms prescribed by laws
enacted by the National People’s Congress.
The law that sets out the terms for the
establishment of the Hong Kong Special
Administrative Region (Hong Kong SAR) is
the Basic Law of the Hong Kong Special
Administrative Region of the People’s
Republic of China (the “Basic Law”) adopted
by the 7th National People’s Congress on
April 4, 1990 and promulgated by decree of
the President of the PRC on that date.
The Basic Law contains a number of
measures that appear to give Hong Kong
separate law-making powers with respect
to taxation:
Article 73 of the Basic Law provides:
The Legislative Council of the Hong
Kong Special Administrative Region
shall exercise the following powers
and functions: ...
(3) To approve taxation and public
expenditure.
Article 106 of the Basic Law provides:
The Hong Kong Special Administra-
tive Region shall have independent
finances.
The Hong Kong Special Administra-
tive Region shall use its financial
revenues exclusively for its own
purposes, and they shall not be
handed over to the Central People’s
Government.
The Central People’s Government
shall not levy taxes in the Hong Kong
Special Administrative Region.
Article 108 of the Basic Law provides:
The Hong Kong Special Administra-
tive Region shall practice an
independent taxation system.
The Hong Kong Special Administra-
tive Region shall, taking the low tax
policy previously pursued in Hong
Kong as a reference, enact laws on
its own concerning types of taxes,
tax rates, tax reductions, allowances
and exemptions, and other matters
of taxation.
Other provisions in the Basic Law appear
to grant Hong Kong sovereign powers to
64
enter into international agreements sepa-
rate from those adopted by the PRC:
Article 151 of the Basic Law provides:
The Hong Kong Special Administra-
tive Region may on its own, using
the name “Hong Kong, China”,
maintain and develop relations and
conclude and implement agree-
ments with foreign states and
regions and relevant international
organizations in the appropriate
fields, including the economic, trade,
financial and monetary, shipping
communications, tourism, cultural
and sports fields.
Article 153 of the Basic Law provides:
The application to the Hong Kong
Special Administrative Region of the
international agreements to which
the People’s Republic of China is or
becomes a party shall be decided by
the Central People’s Government, in
accordance with the circumstances
and needs of the Region, and after
seeking the views of the government
of the Region.
International agreements to which
the People’s Republic of China is not
a party but which are implemented
in Hong Kong may continue to be
implemented in the Hong Kong
Special Administrative Region. The
Central People’s Government shall,
as necessary, authorize or assist the
government of the Region to make
appropriate arrangements for the
application to the Region of other
relevant international agreements.
Further support for this sovereign nature
of Hong Kong may be found in the fact that
in 1998 Hong Kong and the PRC entered
into a double tax treaty.
There is, however, basis for a contrary
argument, notwithstanding the great
lengths to which China went to give Hong
Kong independence in respect of taxation
matters. This argument is based on the
two measures that establish the legitimacy
of Hong Kong laws after the resumption of
sovereignty by the PRC. A general
provision, Article 8 of the Basic Law,
provides for the maintenance of the laws
of Hong Kong after the resumption of
sovereignty and for the power of the
legislature of the Hong Kong SAR to
The Tax Specialist • Volume 6 No 2 • October 2002
continue to amend such laws, provided
that such laws are not in conflict with the
Basic Law. More importantly, Article 160 of
the Basic Law states:
Upon the establishment of the Hong Kong
Special Administrative Region, the laws
previously in force in Hong Kong shall be
adopted as laws of the Region except for
those which the Standing Committee of
the National People’s Congress declares
to be in contravention of this Law.
It is thus a law of the PRC, the same law
which makes it clear that Hong Kong is
part of China, that provides the legal basis
for the continued application of Hong Kong
laws. The effect of Article 160 was
confirmed by the Eighth National People’s
Congress prior to the resumption of
sovereignty. In the Decision of the
Standing Committee of the National
People’s Congress on the Treatment of
Laws Previously in Force in Hong Kong in
accordance with Article 160 of the Basic
Law of the Hong Kong Special
Administrative Region of the People’s
Republic, the Standing Committee
affirmed that the laws previously in force in
Hong Kong are adopted as laws of the
Hong Kong SAR.
Rip J rejected the view that the effect of
Article 160 and the affirmation by the
Standing Committee of Hong Kong’s laws
as laws of the Hong Kong SAR was to
provide the basis for the legal continuation
of Hong Kong’s laws and thus render them
laws of China. Rather, he said, “There is
no evidence before me that the process
described in the immediately preceding
para to adopt the laws of the Crown colony
of Hong Kong constitutes an adoption of
the laws of the HKSAR into the body of
laws of the People’s Republic of China.
Nor does it appear that it is a legislative
act by the National People’s Congress.
Rather, this process took place to ensure
the continuity of the laws of the former
Crown Colony of Hong Kong as laws of
the newly created HKSAR as negotiated
and agreed to by the PRC and the
Government of the United Kingdom.” (at
para 47).
The conclusion sits awkwardly with the
description by Rip J of the process of
continuing Hong Kong’s laws. The
affirmation by the Standing Committee

may only be icing on the cake but at the
end of the day, the only reason Hong
Kong’s laws, including its tax laws,
continue to apply after the resumption of
sovereignty is Article 160 of the Basic
Law, which states that upon the
establishment of the Hong Kong Special
Administrative Region, the laws previously
in force in Hong Kong shall be adopted as
laws of the Region. The Article does not
merely “continue” previous laws; rather, it
re-enacts laws of Hong Kong as laws of
Hong Kong SAR. The previous laws are
given new life as a result of their adoption
as laws of the SAR under the operation of
Article 160 of the Basic Law. In other
words, the Hong Kong laws are adopted
by the operation of a provision of a law of
the PRC, not as a consequence of any
action by a Hong Kong legislature.
Contrary to the conclusion of Rip J, it
would appear that the adoption of the
laws, including the tax laws, was a direct
result of a legislative act by the National
People’s Congress, namely passage of
the Basic Law.
There is an irony in the analysis of Rip J to
the extent that it relies on the Basic Law as
evidence of Hong Kong’s independent
status. While the Basic Law is often viewed
as a quasi-constitutional document, at the
end of the day it is only a law of China and
as such could be repealed tomorrow if the
National People’s Congress so chose. It is
at best a very weak basis for asserting
that Hong Kong’s laws are not laws of
China.
Implications of Edwards for the
Australia–China tax treaty
Two propositions follow from the judgment
in Edwards: first that Hong Kong is not
part of China based on the definition of
China in the Canada–China double tax
treaty and second that tax laws of Hong
Kong are not tax laws of China for the
purposes of the treaty. The reasoning of
the judgment in Edwards might lead to
very different results if applied to the
Australia–China double tax treaty and,
taken one step further, as explained in
part 4 of this note, may have significant
impact on Australian tax law outside the
Australia–China treaty.
In his judgment in Edwards, Rip J
concluded that Hong Kong was not part of
The Tax Specialist • Volume 6 No 2 • October 2002
Is Hong Kong part of China for tax treaty purposes?
China for purposes of the Canada–China
tax treaty because China was defined by
reference to the territory in which four
particular taxes were levied and the tax in
Hong Kong was not one of those taxes or
substantially similar to one of those taxes.
The Australia–China tax treaty uses the
same construction for the definition of
China as does the Canada–China double
tax treaty:
Article 3(1)(b)
the term “China” means the People’s
Republic of China and, when used in
a geographical sense, it means all
the territory of the People’s Republic
of China, including its territorial sea,
in which the laws relating to Chinese
tax apply . . .
As in the Canada–China treaty, China is
defined by reference to the territory on
which the laws relating to Chinese tax
apply. The term “Chinese tax” is similarly
defined in the Australia–China treaty by
reference to Article 2:
Article 3(1)(i)
the term “Chinese tax” means tax
imposed by China, being tax to
which this Agreement applies by
virtue of Article 2
From this point, however, the
Canada–China and Australia–China
treaties diverge. Article 2 in the
Canada–China treaty, it will be recalled,
listed four specific Chinese taxes to which
the treaty applied. The Australia–China
treaty uses a much more general definition.
Compare the Canadian and Australian
provisions describing the taxes to which the
treaty applies in the case of China:
Canada
Article 2(1)(b):
(i) the individual income tax;
(ii) the income tax concerning joint
ventures with Chinese and foreign
investment;
(iii) the income tax concerning foreign
enterprises; and
(iv) the local income tax.
Australia
Article 2(1)(b):
the income tax imposed under the
laws of the People’s Republic of
China.
As in the case of the Canada–China
treaty, the Australia–China treaty also
applies to identical or “substantially
similar” taxes imposed after the treaty
comes into effect. There may be much
broader scope for the “substantially
similar” clause in the Australia–China
treaty to extend to Hong Kong taxes than
its counterpart in the Canada–China
treaty because of the general reference to
Chinese “income tax law” in the
Australia–China treaty as opposed to the
enumeration of specific taxes in the
Canada–China treaty. As Rip J pointed out
in his judgment in Edwards, the Hong
Kong taxes, imposed on a territorial basis,
differ in some significant respects,
particularly with respect to foreign-source
income derived by residents, from the
particular taxes listed in the
Canada–China treaty. They are, however,
“income taxes” in the generic sense of that
phrase – they are imposed on gains that
constitute income under ordinary
concepts as opposed to, say, taxes on
consumption of goods and services or
excise taxes or stamp duties. It remains
debateable whether the Hong Kong taxes
are substantially similar to income taxation
generally in China, but the case may be
easier to make with the Australia–China
treaty than it is with the Canada–China
treaty.
If that threshold is crossed, it would still be
necessary to show that the Hong Kong
taxes are imposed under the laws of the
People’s Republic of China. As noted
earlier, Rip J concluded Hong Kong tax
laws are imposed under laws independent
of those of the PRC. It was suggested that
this analysis may not be correct as all
Hong Kong laws derive authority (and
were in effect re-enacted) under the Basic
Law, a law of China.
The Australian Commissioner of Taxation
takes the position that Hong Kong is not
part of China for the purposes of the
Australia–China tax treaty (Taxation
Ruling TR 97/19). There are several
strands to the Commissioner’s argument.
First, he argues that Hong Kong’s taxes
are not substantially similar to the taxes
levied by the central government
(TR 97/19, para 25). The argument is
based in part on the territorial vs world-
wide income argument used by Rip J in
65
 Jason Chang & Richard Krever
Edwards and the fact that Hong Kong
taxes are based on low taxing rates. The
former point may be relevant to the
question as to whether Hong Kong taxes
are substantially similar to Chinese taxes.
The relevance of the later point is
questionable – rates of tax often change
and in any case Chinese taxes also
provide for low rates (indeed zero rates in
the case of tax holidays) in certain
economic zones. The Commissioner’s
arguments are tenable, though they are
clearly weakened by the fact that the
Australia–China treaty makes reference to
a generic income tax rather than particular
taxes.
The Commissioner’s second argument is
that Hong Kong taxes are not imposed
under the laws of the PRC (TR 97/19,
para 29). The conclusion ignores the
relationship between Hong Kong and the
rest of China and legal basis on which
Hong Kong’s tax laws were re-enacted.
Rather, he relies solely on Article 106 of
the Basic Law which, as noted earlier,
provides that the Central government shall
not levy taxes in Hong Kong. Thus, he
suggests, the Hong Kong tax is not a tax
of China. This conclusion need not follow
from the allocation of taxing rights under
the Basic Law. The fact that the Central
government does not levy taxes in Hong
Kong and instead these are reserved to
the government of the Hong Kong SAR
does not mean that laws of the Hong Kong
SAR are not laws of China. To the
contrary, as was noted earlier, it can be
argued that the Hong Kong government
derives all of its authority from a law of
China and exercises delegated power only
and further that Hong Kong’s tax laws are
laws of China as they were re-enacted by
the Basic Law Article 160. Indeed, the
Commissioner appears to concede that
the taxes imposed in Hong Kong are taxes
imposed by the Hong Kong SAR and not
merely continuation of colonial Hong Kong
taxes (TR 97/19, para 25).
A third argument relied upon by the
Commissioner is perhaps the weakest of
the lot and, if anything, supports the
contrary view more than the Commis-
sioner’s position. The Commissioner points
out that Article 29 of the Vienna Convention
on the Law of Treaties between States and
International Organizations or between
66
International Organizations provides
“Unless a contrary intention appears from
the treaty or is otherwise established, a
treaty is binding upon each party in respect
of its entire territory.” The Commissioner
argues that he has evidence of a contrary
intention. There are a few problems with the
Commissioner’s position. To start with, he is
relying on the wrong Convention. The
Convention he cites governs treaties
between states and international
organisations, not treaties between
sovereign states. The Convention which he
should have cited is the Vienna Convention
on the Law of Treaties between States
(Vienna Convention). However, the correct
Vienna Convention contains the Article to
which the Commissioner refers.
While Australia is a party to the Vienna
Convention, the Convention has never
been incorporated into Australian
domestic law. The Australia–China tax
treaty, by way of contrast has been
incorporated into domestic law (in the
International Tax Agreements Act 1953).
As part of domestic Australian legislation,
it is to be interpreted by reference to the
Acts Interpretation Act. However, courts
have recognised the special nature of
domestic law that is based on an
international treaty and have suggested
that the Vienna Convention may be
considered in the interpretation of such
measures.1
How would the intention of the parties be
ascertained if this were done by reference
to the Vienna Convention? Article 31 of
the Convention, setting forward the
general rule of interpretation, appears to
suggest that when looking for the meaning
of terms in a treaty, the parties may be
limited to the terms of the treaty to be
interpreted or other practice or agree-
ments that indicates the joint intention of
the parties.2 There is no direct evidence of
joint intention as to the interpretation of
the Australia–China tax treaty. For that
matter, there is no evidence of unilateral
intention either apart from the Australian
Commissioner’s assertion as to how the
tax treaty should be interpreted. By way of
contrast, Canadian tax authorities were
able to produce official indications from
the Chinese, Canadian and Hong Kong
governments that the parties did not
intend the Canada–China tax treaty to
The Tax Specialist • Volume 6 No 2 • October 2002
apply to Hong Kong as a part of China.
The only Australian statement, a public
ruling by the ATO, is a statement of the
ATO’s interpretation of measures in the
International Tax Agreements Act 1953,
but not a statement of the government’s
intention as to the interpretation of the
treaty.
A further problem, not explored by the
court in Edwards, is when the intention of
the parties as to the geographical scope of
a treaty should be determined. Can it be
determined by stated positions developed
long after the treaty comes into effect, with
retrospective application, as the ATO
would like – this is what we would have
meant had we known then what we now
know? Or should a “contrary position” to
the application of a treaty to the entire
territory of each country be is one that is
indicated when the treaty was adopted.
The Vienna Convention is not at all clear
on this point. It can be assumed that at the
time the Australia–China treaty was
signed both parties expected the treaty to
apply to all the territory over which China
exercised sovereignty and equally that
neither party thought it would then have
application to Hong Kong, which was at
the time a British colony. Quite probably
neither party turned its mind to what would
happen if Hong Kong ceased to be a
British colony and become part of the
territory over which China exercised
sovereignty since the exact circumstances
of resumed sovereignty could not be
anticipated. The best that can be said is
that the issue is arguable.
It can be seen that a taxpayer wishing to
challenge a refusal by the ATO to extend
Australia–China treaty benefits to an
operation in, or income from, Hong Kong
would have a plausible case to put before
an Australian court. Given the differences
in the definition of “China” in the
Australia–China and Canada–China
treaties, it is possible to distinguish the
Edwards precedent in terms of the
specificity of Chinese tax laws described
in the Canada–China treaty compared to
the generic description found in the
Australia–China treaty. It may also be
possible to distinguish Edwards or to
demonstrate that it is just plain wrong with
respect to the question of whether a law of
Hong Kong is a law of the PRC. Given that
 Is Hong Kong part of China for tax treaty purposes?

all Hong Kong laws acquire legitimacy

only because of a PRC law, the Basic Law,
a sound argument can be made that Hong
Kong’s tax laws are PRC laws for the
purpose of the treaty.
If the government wishes to put the matter
beyond doubt, it should legislate to do so,
WANT TO MAKE
not rely on a very vulnerable Taxation Ruling.
AN IMPRESSION
Jason Chang is a Tax Partner at
KPMG, Melbourne
Richard Krever is a Professor at the
School of Law, Deakin University ON OVER
The views expressed in this comment are
those of the authors and may not reflect 20,000
those of their respective institutions.
REFERENCES
1 The Vienna Convention was thus considered by the
TAX PROFESSIONALS?
courts in both Lamesa Holdings BV v FCT (1997) 35 ATR
239 and Thiel v FCT (1990) 21 ATR 531. See also
Koowarta v Bjelke-Peterson (1982) 153 CLR 168 and G.
Corney, "Mutant Stare Decisis: The Interpretation of
Statutes which Incorporate International Treaties into
Australian Law" (1994) 18(1) University of Queensland
Law Journal 50.
2 See also K Vogel, Klaus Vogel on Double Taxation
Conventions (3rd ed), Kluwer, 1997, p 37. Taxation in Australia is
Australia's leading technical
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The Tax Specialist • Volume 6 No 2 • October 2002 67