Private ruling: Foreign employment income
Published: February 2012
Ruling period: Year ending 30 June 2012 | Year ending 30 June 2013 | Year ending 30 June 2014 | Year ending 30 June 2015
Date scheme commenced: 1 July 2011

Ruling: Q1: Are the pay and allowances you receive from employment in Country X exempt from income tax in Australia under subsection 23AG(1) of the Income Tax Assessment Act 1936 (ITAA 1936)? | A1: 

Relevant facts and circumstances: You are an Australian resident for income tax purposes. You are a member of a disciplined force. You will be working in Country X on a cooperation program between Australia and Country X. Your deployment is for a period of not less than 91 days. While in Country X, you receive a salary and allowances. These allowances are paid to compensate you for costs of living, difficulties and hardship you face during your period of foreign service. You will accrue recreation leave as a result of your employment in Country X. You are likely to expend this recreation leave primarily in Australia. While on leave, you will not perform any work-related duties. Your foreign earnings are exempt from taxation in Country X because of a treaty on development co-operation between the Government of Australia and the Government of Country X. Country X has a tax system in place that taxes employment income. Australia has a tax treaty with Country X.

Relevant legislative provisions: Income Tax Assessment Act 1936 Subsection 23AG(1) | Income Tax Assessment Act 1936 Subsection 23AG(7) | Income Tax Assessment Act 1936 Section 23AG | Income Tax assessment Act 1936 Subsection 23AG(1AA) | Income Tax Assessment Act 1936 Subsection 23AG(2) | Income Tax Assessment Act 1936 Paragraph 23AG(2)(b) | International Tax Agreements Act 1953 Section 3AAA | International Tax Agreements Act 1953 Section 5

Reasons for decision: Summary: Subsection 23AG(1) of the Income Tax Assessment Act 1936 (ITAA 1936) provides that foreign earnings of an Australian resident derived during a continuous period of foreign service of not less than 91 days employment in a foreign country are exempt from tax in Australia. Foreign earnings include income consisting of salary, wages, bonuses or allowances (subsection 23AG(7) of the ITAA 19.36). The salary you receive from your foreign employment is considered to be derived from your foreign service. The allowances are designed to cover various costs and hardship of the foreign service. As they are paid to compensate for costs arising from the foreign service and for the hardship attributable to the foreign service, they are considered to be derived from your foreign service. Therefore, your salary and overseas allowances are foreign earnings from foreign service for the purposes of subsection 23AG(1) of the ITAA 1936. Section 23AG of the ITAA 1936 has been amended so that foreign employment income derived by Australian residents will only be exempt in certain circumstances. These amendments are effective from 29 June 2009. Subsection 23AG(1AA) of the ITAA 1936 provides that foreign earnings are not exempt from tax unless the continuous period of foreign service is directly attributable to any of the following: § the delivery of Australian official development assistance by the taxpayer's employer (generally provided by AusAID or the Department of Foreign Affairs and Trade); § the activities of the taxpayer's employer in operating a public fund covered by the deductible gift recipient categories overseas aid fund and developed country disaster relief fund; § the activities of the taxpayer's employer where they are a charitable institution or religious institution which is income tax exempt because they are a prescribed institution located outside Australia or pursuing objectivities principally outside Australia; § the taxpayer's deployment outside Australia as a member of a disciplined force of Australia (generally considered to be the Australian Defence Force or Australian Federal Police; or § an activity of a kind specified in the regulations. In your case, you are a member of a disciplined force working on a cooperation program between Australia and Country X. As your deployment is directly attributable as a member of a disciplined force, you satisfy one of the conditions for exemption under subsection 23AG(1AA) of the ITAA 1936. However, subsection 23AG(2) of the ITAA 1936 provides that the exemption in subsection 23AG(1) of the ITAA 1936 will not apply where the income is exempt from income tax in the foreign country because of any of the conditions listed in this section. One of the reasons listed is where the income earned by the resident in the foreign country is made exempt by the operation of a tax treaty (paragraph 23AG(2)(b) of the ITAA 1936). Australia has a tax treaty with Country X (Country X Agreement). The Country X Agreement operates to avoid the double taxation of income received by residents of Australia and Country X. An article of the Country X Agreement provides that remuneration paid by Australia to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in Australia. The income and allowances you earn while posted to Country X are also exempt from tax in Country X in accordance with the provisions of a treaty on development co-operation between the Government of Australia and the Government of Country X. As a result, your foreign earnings will not be exempt from tax in Country X solely because of any of the reasons listed in subsection 23AG(2) of the ITAA 1936. Therefore, subsection 23AG(2) of the ITAA will not operate to deny the foreign earnings exemption from income tax in Australia under subsection 23AG(1) of the ITAA 1936. Accordingly, the salary and allowances you receive from employment in Country X are exempt from income tax in Australia under subsection 23AG(1) of the ITAA 1936. | Detailed Reasoning - Note: Foreign earnings exempt under section 23AG of the ITAA 1936 are taken into account in calculating the tax payable on other income derived by a taxpayer. This method of calculation referred to as exemption with progression prevents the exempt income from reducing the Australian tax payable on the other income. This income needs to be included as exempt foreign salary and wages income in your Australian tax return.

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