Private ruling: Foreign Income
Published: September 2011
Ruling period: Year ended 30 June 2012Year ended 30 June 2013 | Year ended 30 June 2014 | Year ended 30 June 2015
Date scheme commenced: 1 August 2011

Ruling: Q1: Is the salary you receive from employment in Country X exempt from income tax in Australia under section 23AG(1) of Income Tax Assessment Act 1936 (ITAA 1936)? | A1: Yes. | Q2: Is the transfer allowance you receive in relation to your employment in Country X exempt from income tax in Australia under section 23AG(1) of ITAA 1936? | A2: No. | Q3: Are the overseas allowances you receive in relation to your employment in Country X exempt from income tax in Australia under section 23AG(1) of ITAA 1936? | A3: Yes.

Relevant facts and circumstances: This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling. You are an Australian resident for taxation purposes. You have been appointed to undertake a deployment to Country X on an Australian Government agency for a period of no less than 91 days. You are an employee of the Australian Government agency. Your foreign earnings are directly attributable to the delivery of Australian official development assistance by your employer. In addition to your salary, you will receive a transfer allowance, financial advice, an outlay allowance and overseas allowance. The transfer allowance is paid for costs associated with preparing for departure for deployment. The financial advice allowance is a reimbursement amount. The outlay allowance is an interest free loan and not an allowance, which must be repaid with your own salary. The overseas allowances are paid to compensate for costs arising from the foreign service and for the hardship attributable to the foreign service. You will not take any breaks other than your recreational leave that accrued during your deployment to Country X. You will not perform any work-related duties if you undertake any breaks in Australia. Australia has a tax treaty with Country X. Country X taxes employment income under its domestic law. Your foreign employment income is exempt from income tax in Country X under the terms of the Memorandum of Understanding (MOU) between the Government of Australia and the Government of Country X.

Relevant legislative provisions: Income Tax Assessment Act 1936 Section 23AG | Income Tax Assessment Act 1936 Subsection 23AG(1) | Income Tax Assessment Act 1936 Subsection 23AG(2) | Income Tax Assessment Act 1936 Subsection 23AG(2)(b) | Income Tax Assessment Act 1936 Subsection 23AG(6) | Income Tax Assessment Act 1936 Subsection 23AG(7) | Income Tax Assessment Act 1936 Subsection 23AG(1AA) | International Tax Agreements Act 1953

Reasons for decision: Summary: While these reasons are not part of the private ruling, we provide them to help you understand how we reached our decision. Subsection 23AG(1) of the 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 earning includes income consisting of salary, wages, bonuses or allowances under subsection 23AG(7) of the ITAA 1936. To qualify for the exemption, the foreign earnings must be derived from the foreign service. That does not mean that the foreign earnings need to be derived at the time of engaging in foreign service. The important test is that the foreign earnings, when derived, need to be derived as a result of the undertaking of that foreign service. Section 23AG of the ITAA 1936 has been amended so 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 Australia's overseas aid program by the individual's employer; The activities of the individual's employer in operating a developing country relief fund or a public disaster relief fund; The activities of the individual's employer being a prescribed institution that is exempt from Australian tax or The individual's deployment outside Australia by an Australian government (or an authority thereof) as a member of a discipline force. In your case, you are an employee of the Australian Government agency and you have been appointed to undertake a deployment to Country X on an overseas aid project. As your deployment is directly attributable to the delivery of an Australian overseas aid program by AusAID, you satisfy one of the conditions for exemption under subsection 23AG(1AA) of the ITAA 1936. In addition to your salary, you receive a transfer allowance and overseas allowance. | Detailed Reasoning - Transfer allowance: The transfer allowance is paid to you to cover costs associated with preparing for departure. This allowance is not paid to cover cost arising from the performance of your foreign service. It is paid to cover costs arising prior to the foreign service. Therefore, this allowance is not considered to be derived from your foreign service. Accordingly, the transfer allowance is not exempt from income tax in Australia under subsection 23AG(1) of the ITAA 1936 as it is not derived from your foreign service. | Detailed Reasoning - Salary and overseas allowances: As you receive a salary from your employment in Country X, this salary is considered to be derived from your foreign service. The overseas 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 services for the purposes of subsection 23AG(1) of the ITAA 1936. The exemption does not apply if the income is exempt from tax in the foreign country only because of any of the reasons listed in subsection 23AG(2) of the ITAA 1936. One of these reasons is a tax treaty contained in the International Tax Agreements Act 1953 (the Agreements Act). Australia has a tax treaty with Country X (Country X Agreement) which 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. However, such remuneration will be taxable only in Country X if the services are rendered in Country X and the individual is a citizen of Country X, or did not become a resident of Country X solely for the purposes of performing the services. The employment income you receive in relation to your deployment in Country X is taxable only in Australia under this particular Article of the Country X Agreement as you are an Australian resident and the income is paid by Australia in respect of services rendered in the discharge of governmental functions. As the employment income you receive while posted to Country X is exempt from tax in Country X because of the operation of a tax treaty, paragraph 23AG(2)(b) of the ITAA 1936 would normally apply and the income would therefore not be exempt from tax under subsection 23AG(1) of the ITAA 1936. However the income you earn while on posting is exempt from tax in Country X because of the terms of the agreement entered into between Australia and Country X. The exemption provided by the agreement does not fall under any of the other exemption categories under subsection 23AG(2) of the ITAA 1936. You satisfy the conditions for exemption under section 23AG of the ITAA 1936. Accordingly, the salary and overseas 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: It is important to note that foreign earnings exempt under section 23AG of 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 other income. This income needs to be included as exempt foreign salary and wages income in your Australia tax return.

Please check this edited version to be sure that there are no details remaining that you think may allow you to be identified. If you have any concerns about this ruling you wish to discuss, you will find our contact details in the fact sheet.