Private ruling: Foreign earnings
Date of advice: 16 June 2017
Published: October 2017
Ruling period: Financial year ended 30 June 2017 | Financial year ended 30 June 2018
Date scheme commenced: 1 July 2016

Ruling: Question and Answer | Is your income from working on a DFAT funded project exempt under Section 23AG of the Income Tax Assessment Act 1936? | Yes

Relevant facts and circumstances: You are a resident of Australia for tax purposes You took up an employment position in Country X You will be employed in the foreign location for y periods; each period is greater than 91 days. You are employed by a private entity. Your position was funded by the Department. In addition to the daily rate, you received a daily per diem as per the ARF pay scales. This per diem is for business expenses such as work phone calls and transport to and from work, travel expenses such as meals and groceries. You have provided a letter from your employer which confirms that you are working on an Australia Aid funded program

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(1AA), | Income Tax Assessment Act 1936 subsection 23AG(2), | International Organisations (Privileges and Immunities) Act 1963 , | Income Tax Assessment Act 1997 subsection 6-5(2)

Reasons for decision: Summary: While these reasons are not part of the private ruling, we provide them to help you to understand how we reached our decision. Subsection 23AG(1) of the Income Tax Assessment Act 1936 (ITAA 1936) provides that foreign earnings are exempt from income tax where all of the following requirements are satisfied: ● you are a resident of Australia and a natural person, ● you are engaged in foreign service, ● the foreign service is for a continuous period of at least 91 days, ● you derive foreign earnings from that foreign service, ● the foreign service is directly attributable to an activity that is listed in subsection 23AG(1AA) of the ITAA 1936, and ● the foreign earnings are not exempt from income tax in the foreign country only because of one of the reasons listed in subsection 23AG(2) of the ITAA 1936. Considering your circumstances, it is accepted that you meet the above criteria and the income referable to your foreign service is exempt from income tax in Australia. | Detailed Reasoning - Detailed reasoning: 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: Delivery of Australian official development assistance by your employer (except if that employer is an Australian government agency (within the meaning of the Income Tax Assessment Act 1997 )). ● Activities of your employer in operating a public fund declared by the Treasurer to be a developing country relief fund, or a public fund established and maintained to provide monetary relief to people in a developing foreign country that has experienced a disaster (a public disaster relief fund). ● Activities of your employer as a prescribed charitable or religious institution exempt from Australian income tax because it is located outside Australia or the institution is pursuing objectives outside Australia. ● Deployment outside Australia by an Australian government (or an authority thereof) as a member of a disciplined force. You satisfy one of the conditions for exemption under subsection 23AG(1AA) of the ITAA 1936. Subsection 23AG(2) of the ITAA 1936 provides that no exemption is available under subsection 23AG(1) of the ITAA 1936 in circumstances where an amount of foreign earnings derived from service in a foreign country is exempt from tax in the foreign country solely because of: ● a tax treaty or a law of a country that gives effect to such an agreement (paragraphs 23AG(2)(a) and (b) of the ITAA 1936); ● the law of a foreign country generally exempts from, or does not provide for the imposition of income tax on income derived in the capacity of an employee, income from personal services or any other similar income (paragraphs 23AG(2)(c) and (d) of the ITAA 1936), or ● a law or international agreement dealing with privileges and immunities of diplomats or consuls or of persons connected with international organisations applies (paragraphs 23AG(2)(e), (f) and (g) of the ITAA 1936). There is currently no double taxation agreement between Australia and the xxx or any law to that effect. You were not deployed as a member of an international organisation as defined in the International Organisations (Privileges and Immunities) Act 1963 . On your deployment you were neither a member of a diplomatic or consular mission, nor covered by an international agreement that would give rise to any privileges or immunities. Therefore none of the exclusions listing exemptions under subsection 23AG(2) of the ITAA 1936 apply to your foreign earnings. Accordingly, the income that you receive from services performed in the Country X are exempt from tax under subsection 23AG(1) of the ITAA 1936 and are not assessable income under subsection 6-5(2) of the Income Tax Assessment Act 1997 .