Tim Russell recently had an article published in volume 38(2) of the Australian Tax Forum, titled Constitutional Issues in the Collection of Foreign Taxes (2023) 38(2) ATF 225.

The abstract can be read below.

The recent double tax treaty concluded by Australia with Iceland is the eighth of its type since 2005 to include a provision modelled on art 27 of the OECD Model, which requires mutual assistance in the collection of taxes. The inclusion of such a provision appears to be an optional feature of Australia’s treaty practice with numerous new or rewritten treaties eschewing the same. Subdivision 263-A of Sch 1 to the Taxation Administration Act 1953 was enacted in 2006 to facilitate the collection of foreign taxes within Australia in respect of those treaty articles that confer rights upon foreign revenue authorities to demand collection of their taxes in Australia. This paper expresses the concern that inadequate thought has been given to the drafting of Subdiv 263-A to conform it to the requirements of Australia’s Constitution. The view is expressed that the collection of foreign taxes from parties within jurisdiction is not a law supported by the taxation power of s 51(ii). Despite this, Subdiv 263-A remains a law supported by the external affairs power of s 51(xxix), albeit one that is inhibited by the restriction imposed by s 51(xxxi) of the Constitution which requires acquisitions of property to be on just terms. The present rules may fail to comply with s 51(xxxi), which would render their validity dubious.