For many businesses, investors, and travellers, international travel is a regular, or important part of life. When 2020 started there were only very vague whispers that something was lurking over in China. Otherwise, travel, and travel plans, went on as usual. However, things very quickly escalated as COVID-19 began to spread around the world, with country after country swiftly and suddenly imposing international travel bans and local movement restrictions.
With an estimated 1 million Australians living and travelling overseas, many have found themselves trapped in inaccessible areas or unable to find a flight back home. Equally, many Australian expats have found themselves back in Australia unable to leave Australia temporarily.
From a tax perspective this does lead to the question of what tax consequences arise in these situations.
OECD Guidance
The OECD has released some guidance on what this could mean from a tax perspective. The following notes are based on the 3 April 2020 version of this advice.
Unintentional Creation of a “Permanent establishment” for Businesses Through Employees Stranded Overseas
It is considered unlikely that individuals who have been dislocated overseas and are working from a residence overseas during this crisis, will be seen as creating a permanent business establishment overseas. This is an exceptional situation where employees may temporarily be working in a different location for a long time.
In general, an isolated individual who is required to work from an overseas home is only working there on intermittent business activities and not creating a place of business that is used on a continuous basis to carry out the tasks of an enterprise. The situation is out of the control of the business, where the normal place of work is inaccessible.
However, it is also important to consider the domestic laws in the country where an employee is working during this time. Domestic laws may have different requirements in place, may not be adequately covered by a double tax treaty, or may not have legislated exemptions specific to the COVID-19 travel restrictions. It is therefore important to obtain advice specific to the country in which an employee is working during the COVID-19 travel restrictions.
It is also important to note that if an employee was habitually concluding contracts overseas on behalf of the business back in their home country, before COVID-19 travel restrictions were imposed, that they may be treated differently for tax purposes.
Could the Residence Status of a Company be Impacted when the Effective Place of Management has been Displaced Overseas During COVID-19 Travel Restrictions?
Some businesses may have found that their chief executive officers or other senior executives are stuck in a country other than the company’s country of residence, for the duration of the COVID-19 restrictions. This leaves those businesses concerned that there is effectively a relocation of management to an overseas location, which could in turn impact the company’s tax residency status.
Again the advice noted is that it is unlikely that situations created by COVID-19 restrictions will cause an unintended change in an entity’s status for tax residency. This is because the change in location of management is both an extraordinary and temporary situation due to an emergency situation.
Tax treaties typically contain tie breaker rules that should ensure this remains the case. In particular it is noted that the key to determining the location of management is the place where management usually occurs. This means a forced change of location of management during COVID-19 travel restrictions is unusual and exceptional, as well as temporary, in that the intention will be to resume usual operations once the travel restrictions are lifted.
Cross Border Workers
When a government is subsidising the wages of an employee who usually works in one location but is being paid while simply residing in another, from which country would this income be attributable?
The OECD Commentary indicates that this should be the place where the employee would otherwise have been working to earn their usual wages. This is because taxing rights are typically given to the place where employment duties are performed. Since the government payment is in relation to their normal employment duties, normal taxing rights apply to the source country. The country of residence would therefore be required to tax this income under the usual double taxation relief between the two countries.
Change of Residence Concerns
The OECD indicates that it is unlikely that the COVID-19 situation will affect the normal treaty residence position.
Australia, the UK, and Ireland, for example, have all issued guidance making it clear that where it is merely the exceptional circumstances of COVID-19 travel restrictions that are keeping non-residents within the country, this will not cause a change in tax residence.
However, it should be noted that such guidance has been qualified. For example, it is the ATO’s view that if a temporary change due to COVID-19 becomes permanent, then all the usual income tax issues will need to be confronted.
Business as Usual
In general it appears that the OECD is suggesting that COVID-19 travel restrictions will not, by and large, result in changes to the usual measures and tax treatments that are in place.
This is because the COVID-19 restrictions are government mandated restrictions that are out of the control of the businesses and individuals who are impacted by them. They are exceptional circumstances imposed to deal with an emergency situation, rather than business as usual, and they will therefore only be temporary measures, even if they last for a lengthy period.
It should, however, be noted that all of these indications are general in nature and largely based on the model double taxation conventions as well as typical responses around the world to the COVID-19 travel restrictions and the way different countries are dealing with the issues that have arisen from this.
Specific tax advice should be sought from the local jurisdiction in which you are residing whilst under COVID-19 travel bans, as well as your Australian international tax specialists, to ensure that your specific situation, and the applicable double tax agreement and extraordinary circumstances are properly understood.
