Explaining the Saving Clause II

This is part 2 of a three part series explaining how the Saving Clause works in international tax treaties. In part 1, we saw how international transactions are taxed for almost 90% of the world’s population under Residence Based Taxation (RBT). We looked at the example of Maria, an Australian resident with rental income in Santiago Chile. Maria pays tax to Chile on the rental income, but is not required to report or pay tax in Chile on any of her Australian income. On her Australian tax return, Maria reports the Chilean rental income and is able to deduct the tax paid in Chile from her Australian tax. Essentially, Chile has the first right to tax Chilean source income. 

Part 2 – Adding a Saving Clause

At this point we’re going to make one small change to our example. Instead of being a Chilean citizen with property in Santiago, what if Maria is an American citizen with property in San Diego? While this seems like a minor change, there are actually TWO major differences. First, Maria is now a US citizen. The US is the only country in the world to tax its citizens on their worldwide income, wherever they live in the world, using the same rules that apply to US residents. This practice of citizenship based taxation (CBT) is what causes most of the problems that Maria will face. But, the tax problem of CBT is amplified by the second difference: the tax treaty between Australia and the US contains a saving clause.

As a US citizen living in Australia, Maria now has TWO countries that claim the right to tax her on all of her worldwide income. In fact, both countries will be taxing her under resident tax rules – for tax purposes she lives in TWO countries! This causes a problem. Which country gets the first claim on taxing Maria’s income? The general rule here (which can be modified by the treaty) is that the country where the income arises has the first claim on Maria’s income and the other country must allow a tax credit for tax paid to the source country.

So, back to Maria’s taxes: with regard to the income on the rental property, there’s actually no difference from the initial scenario. Maria will pay US tax on the US-source rental income and will get a credit for that US tax against the Australian tax on the same rental income. The difference is the treatment of Maria’s Australian Source income. Because the US applies CBT, the US claims the right to tax Maria’s Australian Source income – her salary, superannuation, Australian investments – using the same rules as those that apply to US resident taxpayers. Since this income is Australian Source, Maria is able to reduce her US tax liability with a credit for taxes paid to Australia on the same income. If the US and Australia had the same tax rules, then this wouldn’t be much of a problem (a hassle, yes, but the credit for Australian tax would generally offset all of the US tax). The problem comes when the US taxes income that’s not taxed in Australia, or applies different rules for computing taxable income.

Wait a minute, why doesn’t the tax treaty with the US stop this? After all, Australia is already taxing Maria on her worldwide income. Allowing the US to tax the San Diego rental property makes sense, but not her Australian source income. For example, Article 15 of the tax treaty says:

(1) Subject to the provisions of Article 18 (Pensions, Annuities, Alimony and Child Support) and 19 (Governmental Remuneration), salaries, wages and other similar remuneration derived by an individual who is a resident of one of the Contracting States in respect of an employment or in respect of services performed as a director of a company shall be taxable only in that State unless the employment is exercised or the services performed in the other Contracting State. …

Yes, treaties are difficult to read! For the moment, we’ll assume that Maria is employed by an Australian company and performs all the duties of her job in Australia. Maria is a resident of Australia (“one of the Contracting States”), so this clause says her income can only be taxed in Australia unless she actually works in the US (“the other Contracting State”). Why, then, does the US get to tax Maria’s salary? Because Maria cannot use Article 15 of the treaty!

Yes, that’s right. Because Maria is a US citizen, she is only allowed to use a small part of the Australia/US Tax Treaty. This is due to the “Saving Clause”. Remember what Article 1 of the Australia/Chile Tax Treaty looked like? It was just one sentence. Here’s the equivalent article of the Australia/US Tax Treaty:

Personal Scope

(1) Except as otherwise provided in this Convention, this Convention shall apply to persons who are residents of one or both of the Contracting States.

(2) This Convention shall not restrict in any manner any exclusion, exemption, deduction, rebate, credit or other allowance accorded from time to time:

(a) by the laws of either Contracting State; or

(b) by any other agreement between the Contracting States.

(3) Notwithstanding any provision of this Convention, except paragraph (4) of this Article, a Contracting State may tax its residents (as determined under Article 4 (Residence)) and individuals electing under its domestic law to be taxed as residents of that state, and by reason of citizenship may tax its citizens, as if this Convention had not entered into force. For this purpose, the term “citizen” shall, with respect to United States source income according to United States law relating to United States tax, include a former citizen or long-term resident whose loss of such status had as one of its principal purposes the avoidance of tax, but only for a period of 10 years following such loss.

(4) The provisions of paragraph (3) shall not affect:

(a) the benefits conferred by a Contracting State under paragraph (2) of Article 9 (Associated Enterprises), paragraph (2) or (6) of Article 18 (Pensions, Annuities, Alimony and Child Support), Article 22 (Relief from Double Taxation), 23 (Non-Discrimination), 24 (Mutual Agreement Procedure) or paragraph (1) of Article 27 (Miscellaneous); or

(b) the benefits conferred by a Contracting State under Article 19 (Governmental Remuneration), 20 (Students) or 26 (Diplomatic and Consular Privileges) upon individuals who are neither citizens of, nor have immigrant status in, that State (in the case of benefits conferred by the United States), or who are not ordinarily resident in that State (in the case of benefits conferred by Australia).

Paragraph (3) contains the Saving Clause – it “saves” (or reserves) the ability of the US to tax its citizens on Australian source income! It does this by saying that the US can tax its citizens as if the treaty didn’t exist! Paragraph (4) gives US citizens resident in Australia the ability to use a very limited subset of the treaty provisions. There’s no mention of Article 15 in paragraph (4), so Maria can’t use it to exclude her Australian salary from US tax.

So, what parts of the treaty can US citizens living in Australia use to exclude Australian source income from their US tax return? Only the parts listed in Article 1 paragraph (4):

  • Paragraph (2) of Article 9 relates to business enterprises, and is not likely to be applicable to individuals.
  • Paragraph (2) of Article 18 relates to Social Security or other public pensions – these are taxable only by the country paying the pension. US Social Security benefits are taxable only by the US and Australian public pensions (and arguably superannuation) are taxable only by Australia.
  • Paragraph (6) of Article 18 relates to alimony child support payments – these are taxable only in the country where they arise. A US citizen receiving child support under an Australian court order is not taxed on that child support on their US tax return.
  • Article 22 provides for foreign tax credits to avoid double taxation.
  • Article 23 says that neither country can have tax rules that discriminate against citizens of the other country. That is, the US cannot have tax laws that treat Australian citizens living in the US any worse than US citizens living in the US, and vice versa.
  • Article 24 provides procedures for the “competent authority” in the two countries to agree between themselves on the meaning or application of the treaty.
  • Paragraph (1) of Article 27 specifies the “source” of income for the purpose of determining which country has to provide a foreign tax credit. Generally, the source country has the first right of taxation and where the income is also taxed in the non-source country, that country must provide a credit (under Article 22) for taxes paid to the source country.

That’s it! Because of the Saving Clause, Maria must prepare her US tax return as if the rest of the treaty didn’t exist!

In summary, the purpose of the saving clause is to allow the US to tax the Australian source income of Australian resident US taxpayers. This is directly contrary to the principle that we started with in Part 1:

The Australian Source income of Australian Residents should be taxable only by Australia.

In Part 3 of this series we will explore the effect of removing the saving clause (without changing the US practice of CBT) plus other changes Australia might ask for in the treaty to stop the US from taxing the Australian source income of Australian residents.

11 thoughts on “Explaining the Saving Clause II”

  1. This is really excellent Karen. Some days I will (laboriously) wade through parts of a Treaty and understand it. But the next day, will not be clear about it at all. Putting it in the way that you have, makes it a lot more comprehensible. Thanks!

    One really has to wonder why any country would agree to allowing the U.S. to tax what is rightfully theirs in the first place. I have never heard of any regular practice of enforcing that via threat such as was done with FATCA/IGAs.

    Perhaps other expats should be looking at doing the same as you guys are doing (though I don’t quite feel “up” to a new project at the moment…LOL)

    1. Trish, I reckon the US, due to their economic importance, gets to dictate Treaty terms to other countries. For example, the Australian business lobby would push for the tax treaty (just as they did the FATCA IGA) as they would want treaty benefits. In the case of the FATCA IGA, Business couldn’t afford the 30% withholding (the stick) so they used their influence to push it through.

      I’ve been interested in what the Aussie negotiating framework / priorities might have been during the last 2001 Aus-USA treaty update and have been wondering if we could use FOI to get documents pertaining to this.

      One challenge in getting Australia to renegotiate the tax treaty is to make sure we don’t end up being seen as a risk to business interests as this will surely derail our efforts.

      1. Carl, I spent the day going back to the older tax treaties between the U.S. and Canada. The saving clause is there, way back to 1936. I know what you say is likely the case but I really, really wonder. For example, in 1936, Bretton Woods hadn’t happened yet so exactly what sort of dominance did the U.S. have at that point?

    2. Tricia,

      One really has to wonder why any country would agree to allowing the U.S. to tax what is rightfully theirs in the first place.

      I don’t think the Australian government saw it that way. I don’t think they realised that many of the “US citizens” who would be affected by the Saving Clause are ALSO Australian citizens – and they certainly had no idea of the problems faced by Accidental Americans. My guess is that if they thought about how the saving clause would be used, they were picturing temporary migrants from the US. US treatment of US citizens who are on temporary assignment in Australia was not something the Australian government worried about (and not something that would impact Australia in the long run). With increased international migration (especially long-term immigrants), there is a greater impact to allowing the US to plunder the Australian tax base. And with FATCA and increased cross-border information sharing, more long-term migrants (and Accidental Americans) are becoming ensnared in the US tax system, draining even more money from the Australian economy.

      1. Karen, I think you are right. The governments who agreed to the savings clause:

        1. Had little or no understanding of what U.S. citizenship-based taxation (past, present and future really meant)

        2. Imagined the treaty ONLY in terms of “global mobility”. By that I mean, that the Treaty was imagined in a world where this issue arose only in connection with Australians moving to the USA and USA citizens moving to Australia. It was conceived as a mobility issue and NOT as a “long term residence issue”.

        3. Failed to imagine the treaty in the context of “dual citizenship”. Bear in mind that up until the 1970s it was far more difficult for U.S. citizens to be dual citizens. As a general principle, the concept of “dual citizenship” was really in its infancy. Dual citizenship is now very common.

        4. Utterly failed to imagine that the “savings clause” meant that Australia was agreeing that the United States could impose U.S. taxation (according to the rules in the U.S Internal Revenue Code) on Australian citizens living in Australia. Obviously, no country that understood the savings clause in this context, would have ever agreed to it. But, I do think (have a look at U.S. Treasury technical explanations of the “savings clause”) the USA DID understand this. (Although I doubt U.S. Treasury understood the extent of the application.)

        As I have thought about this issue, my mind keeps returning to one simple question:

        “What in general terms is the purpose of a savings clause?” (An important question given that the OECD model treaty appears to be moving in that direction.)

        The answer I think is:

        The purpose of a “savings clause” is to PREVENT residents of a country (as defined in the tax treaty) from using a tax treaty to pay less tax than than their neighbor across the street. In other words, the purpose of a “savings clause” is to ensure that Karen in Australia, cannot use the tax treaty to exclude income from Australian taxation that would be included by her next door neighbor.

        It’s obvious that the purpose of the “savings clause” could NEVER have been to allow the United States to plunder the Australian economy as described here:


        It’s time to reinterpret the “savings clause” …

        Because treaties are interpreted largely in terms of the “expectations of the parties”, I think Australia (and other countries) should take the position that the “savings clause” does NOT apply to Australian citizens living in Australia. For example, the “savings clause” could NEVER have been understand to prevent Australian citizens residing in Australia from simple financial planning. It’s a simple matter of survival! It’s a simple matter of respecting the sovereignty of Australia!

        What Australian citizens must do …

        But, in order to do this, Australian citizens MUST take charge of this situation and NOT allow the “tax professionals” to tell you that the “savings clause” says this or that … Please understand that the “tax professionals” are the mechanism that U.S. Treasury uses to enforce U.S. taxation on Australian residents!

        Really, it’s up to you! You as Australian citizens resident in Australia need to decide whether you think that the “savings clause” was really meant to apply to Australian citizens resident in Australia!

        Finally, on the 2016 U.S. Treasury Model Tax Treaty …

        Have a look at this. You will see that U.S. Treasury (while providing relief in the application of U.S. tax rules to foreign pensions, etc.) is actually proposing a massive expansion of the scope the “savings clause”! See the post here:


        (The comments especially the second comment from @Ricard is particularly interesting.)

        Therefore, the time to address this issue is NOW!

  2. If:
    “Article 23 says that neither country can have tax rules that discriminate against citizens of the other country. That is, the US cannot have tax laws that treat Australian citizens living in the US any worse than US citizens living in the US, and vice versa.”
    I don’t understand how the implementation of CBT hasn’t violated this article, especially considering what John Richardson commented above about the scope of the savings clause being applied in ways that were never intended (or imagined) when the treaties were initially agreed. CBT abuses US citizens, duals and accidentals by exposing them to dubious, incomprehensible tax reporting and facing them with banking and retirement plan discrimination. What is the consequence when one of the parties breaks the contract?

    Besides that, why are any of the articles that become nullified by the savings clause even included in the treaty for anyway? They could’ve saved some paper by printing up the short version of only what’s really valid. To me it looks like the US hid this extrodinary clause among the many ordinary treaty articles so that no other signatory nations would raise an eyebrow. As John Richardson states, “Because treaties are interpreted largely in terms of the “expectations of the parties,”” there’s a powerful argument to be made that this clause is being interpreted much too widely – more widely than ever supposed – and the efforts of the compliance industry to push the limits of the savings clause should be duly rejected and ignored. I sincerely doubt the nations with “savings clause” tax treaties with the US were ever informed by the US about the US’s “expections” for applying the clause. If it’s true that the savings clause makes its first appearance in the 1930s, a time when countries held their sovreignity in the highest regard, then it is unfathomable that any nation would ever have agreed to such a tax-base eroding clause.

    1. Hi Petlover, glad to “see” you here!
      Article 23 says the US can’t discriminate against Australians living in the US, which it does not. Aussie expats living in the US are subject to exactly the same rules as US residents. What the US does is discriminate against Australian-resident US citizens who are taxed more onerously than all other Australian residents. This is not prohibited by the treaty – in fact, the saving clause ensures it.

      And, the saving clause only nullifies most of the rest of the treaty for US citizens (and green card holders). All other Australian residents with US source income are able to use all parts of the treaty. And US residents can use the treaty to get benefits (lower tax rates, etc) from Australia on Australian source income.

      In the 1930s dual citizenship was rare. US citizens who naturalised in Australia would have lost their US citizenship automatically. So the saving clause mainly applied to non-Australian citizens living in Australia, many of them planning to return to the US. Since then, US citizenship has become harder to get rid of and dual citizenship has become much more common.

      1. Thanks for clarifying! I get mixed up reading the legal language so by the end I don’t know which way is up any more. For this same reason, I also feel if there is no requirement for US persons to have their returns prepared by a professional, then all the tax information – tax code, treaties, totalisation agreements, IRS instructions/publications – must be written in plain language so the average person can understand it.

  3. Question about this:
    (2) This Convention shall not restrict in any manner any exclusion, exemption, deduction, rebate, credit or other allowance accorded from time to time:

    (a) by the laws of either Contracting State; or

    (b) by any other agreement between the Contracting States.
    Does this cancel out any relief provided by a totalisation agreement, for example?

    1. Petlover – no that doesn’t affect the applicability of the totalisation agreement or any other agreement between the US and Australia.

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