THE ATO TR 2021/D4 - Taxation of Software Payments as Royalties - Comments on the Draft Ruling

Taxation of software payments as royalties has been a vexed issue worldwide. The controversy has been settled to some extent by the Supreme Court in India but that ruling has also thrown up new controversies for future litigation. A fresh attempt by the Australian tax authorities to characterise software payments as royalties is interesting but not without problems. This piece deals with the understanding of the exclusive rights available to a copyright owner under the Australian Copyright Act, 1968 and the impact that should have while ascertaining the characterisation of software payments under the ITAA 1936. The conclusions drawn also should apply to interpret the meaning of the term royalties in double tax avoidance agreements. The write up is based on the submissions made by the author to the ATO in response to the Draft Ruling.