Income tax: assessable income: Australian Federal Police deployed to Jordan
Please note that the PDF version is the authorised version of this ruling.This document has changed over time. View its history.
|LEGALLY BINDING SECTION:|
|Summary - what this Ruling is about|
|Date of effect|
|NOT LEGALLY BINDING SECTION:|
|Appendix 2:Detailed contents list|
This publication provides you with the following level of protection:
This publication (excluding appendixes) is a public ruling for the purposes of the Taxation Administration Act 1953.
A public ruling is an expression of the Commissioner's opinion about the way in which a relevant provision applies, or would apply, to entities generally or to a class of entities in relation to a particular scheme or a class of schemes.
If you rely on this ruling, the Commissioner must apply the law to you in the way set out in the ruling (unless the Commissioner is satisfied that the ruling is incorrect and disadvantages you, in which case the law may be applied to you in a way that is more favourable for you - provided the Commissioner is not prevented from doing so by a time limit imposed by the law). You will be protected from having to pay any underpaid tax, penalty or interest in respect of the matters covered by this ruling if it turns out that it does not correctly state how the relevant provision applies to you.
[Note: This is a consolidated version of this document. Refer to the Legal Database (https://www.ato.gov.au/law) to check its currency and to view the details of all changes.]
Summary - what this Ruling is about
1. This Ruling sets out the Commissioner's opinion on the way in which the relevant provisions identified below apply to the defined class of entities, who take part in the scheme to which this Ruling relates.
- section 23AG of the Income Tax Assessment Act 1936 (ITAA 1936)
- section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997).
All subsequent legislative references are to the ITAA 1936 unless otherwise indicated.
Class of entities
3. The class of entities to which this Ruling applies comprises employees of the Australian Federal Police (AFP) who are deployed to Jordan as part of Operation Gallant Phoenix (OGP). In this Ruling these entities are referred to as AFP employees. The class of entities only includes persons who remain Australian residents for tax purposes throughout the period of their deployment.
5. The class of entities defined in this Ruling may rely on its contents provided the scheme actually carried out is carried out in accordance with the scheme described in paragraphs 8 to 24 of this Ruling.
- this Ruling has no binding effect on the Commissioner because the scheme entered into is not the scheme on which the Commissioner has ruled, and
- this Ruling may be withdrawn or modified.
Date of effect
7. This Ruling applies from 1 May 2016. However, this Ruling will not apply to taxpayers to the extent that it conflicts with the terms of a settlement of a dispute agreed to before the date of issue of this Ruling (see paragraphs 75 and 76 of Taxation Ruling TR 2006/10 Public Rulings).
- application for Class Ruling dated 15 May 2018
- Australian Federal Police (Overseas Conditions of Service) Determination (No.1) 2013 ('Single Determination'), and
- Jordan Income & Sales Tax Department, Income Tax Law 1985.
9. AFP appointees are deployed (on Assignment) to Jordan as part of OGP. This is a US led foreign fighter intelligence fusion centre in Jordan. The AFP has been deploying members to OGP on a three month rotating cycle since May 2016. While deployed to OGP, AFP members live and work on base alongside other law enforcement and military personnel.
- members of the AFP, including the Deputy Commissioner of Police, and any AFP employee in respect of whom a declaration has been made under section 40B of the AFP Act, but excluding the Commissioner of the Australian Federal Police
- AFP employees, being individuals who have been engaged as an employee by the Commissioner of the Australian Federal Police in accordance with section 24 of the AFP Act
- special members of the AFP, being individuals appointed by the Commissioner of the Australian Federal Police under section 40E of the AFP Act, to assist in the performance of the AFP's functions
- protective service officers, being AFP employees that are engaged under section 24 of the AFP Act and declared as a protective service officer by the Commissioner of the Australian Federal Police under section 40EA of the AFP Act
- special protective service officers, being AFP employees that have been declared as a special protective service officer by the Commissioner of the Australian Federal Police under section 40EC of the AFP Act, and
- individuals seconded to the AFP under section 69D of the AFP Act.
Salary payments and allowance entitlements
- Base pay, per relevant enterprise agreement (section 2.1)
- Special Circumstances Composite (section 1.15)
- Higher Duties Allowance (section 2.2)
- Flexibility Allowance (section 2.4.1)
- Cost of Living Allowance (section 2.4.2)
- Overseas Allowance (section 2.4.3)
- Unaccompanied Location Allowance (section 2.4.6)
- Location Allowance (section 2.4.5)
- Field Allowance (section 2.6)
- Reunion Allowance (section 2.8.3)
- Respite Fare Allowance (section 2.8.2)
- Accompanied Allowances (section 3.2).
14. The transfer allowance is covered in section 3.1.1 of the Single Determination. AFP accepts that the transfer allowance is not 'foreign earnings' for purposes of the definition in subsection 23AG(7) and cannot be exempt under section 23AG.
Leave entitlements and arrangements for leave
16. At the commencement of an Assignment, an AFP appointee's ordinary entitlement to accrue and/or utilise recreation leave under the relevant AFP Enterprise Agreement (EA) or AFP Executive Level Executive Agreement (ELEA) will be frozen. These entitlements will remain frozen until the person is no longer on Assignment.
Overseas Annual Leave
17. On Assignment, an AFP appointee covered by the Single Determination is entitled to accrue and utilise Overseas Annual Leave, which is accrued in lieu of any leave entitlements applicable under the EA or ELEA, and takes into account all types of leave available under these agreements.
- for employees covered by the EA - at six weeks plus four Mandatory Rest Days (MRDs) per annum, and
- for employees covered by the ELEA - at five weeks per annum.
Overseas Personal Leave
22. An AFP appointee's entitlement to accrue and utilise Personal Leave under the relevant EA or ELEA will be frozen at existing levels while the Single Determination is operative. Any Overseas Personal Leave that is unused at the end of an Assignment will be transferred into the AFP appointee's Australian based leave accruals.
23. AFP appointees engaged in foreign service in Jordan will be provided 18 days of Overseas Personal Leave for each 12 months of the Assignment (or on a pro-rata basis for periods of Assignment less than 12 months).
24. Where an appointee requires additional Overseas Personal Leave in excess of the amount provided for under the Single Determination, subject to the approval of the appropriate AFP Delegate, the AFP appointee may be required to return to Australia and utilise relevant EA or ELEA entitlements.
26. Subject to paragraphs 27, 28 and 34 of this Ruling, the salary and allowances referred to in paragraph 12 of this Ruling, derived by AFP employees described in paragraph 3 of this Ruling deployed to Jordan are exempt from tax under section 23AG where:
- the employee has been engaged, or is taken to have been engaged, in service in Jordan for a continuous period of not less than 91 days, and
- the salary and allowances are derived from that foreign service, including payments for recreation leave that has wholly accrued from the period of service in Jordan.
- the employee is engaged in a continuous period of foreign service of less than 91 days
- they are not foreign earnings derived from that foreign service, as defined in subsection 23AG(7), or
- the employee has ceased to be an Australian resident for income tax purposes.
28. The transfer allowance referred to in paragraph 14 of this Ruling is not 'foreign earnings' for purposes of the definition in subsection 23AG(7) and will not be exempt foreign services income under section 23AG.
Temporary absences form part of foreign service
- the AFP employee has a temporary absence from foreign service taken in accordance with the terms and conditions of that service because of accident or illness, or recreation leave wholly attributable to the period of foreign service (but not absences for long service leave, leave without pay or at reduced pay, furlough or extended leave, however described) (subsection 23AG(6) and Taxation Determination TD 2012/8 Income tax: what types of temporary absences from foreign service form part of a continuous period of foreign service under section 23AG of the Income Tax Assessment Act 1936?), or
- the AFP employee has two or more periods of foreign service that constitute a continuous period of foreign service (subsection 23AG(6A) and TD 2012/8).
Absence from work because of accident or illness
31. Under subsection 23AG(6)(b), an AFP employee remains 'engaged in foreign service' notwithstanding an absence from work because of accident or illness. Such a period will not break the AFP employee's continuous foreign service for the purposes of subsection 23AG(1). An absence because of accident or illness counts as foreign service whether the employee is on paid leave or unpaid leave, or whether entitlements for paid leave are for the foreign service.
32. Absence from work due to accident or illness cannot extend the period of foreign service beyond the time when the AFP employee would have returned from the deployment or resumes duty in Australia, whichever occurs earlier.
33. To the extent that an AFP employee derives income from EA personal leave entitlements for an absence from work due to accident or illness, the income is not attributable to foreign service and is not exempt. It is assessable income.
Exemption with progression
34. Where the salary and allowances are exempt from tax under paragraph 26 of this Ruling, they are 'foreign earnings' of the AFP employees under subsection 23AG(7) and are taken into account in calculating the Australian tax on other assessable income derived by the employee (subsection 23AG(3)).
- Australian employment income of $60,300
- allowable deductions against Australian income of $300
- exempt foreign employment income of $30,100, and
- expenses directly related to exempt foreign employment income of $100.
Assume that Daniel has appropriate private patient hospital cover for Medicare levy surcharge purposes.
The total amount of Australian tax payable will be calculated with reference to the following formula:
Notional gross tax / Notional gross taxable income * Other taxable income
Daniel's notional gross taxable income is:
$90,000 = ([$60,300 - $300] + [$30,100 - $100])
The notional gross tax is $20,932 (the normal Australian income tax and Medicare levy payable on a taxable income of $90,000).
The other taxable income is $60,000 (Australian employment income).
The Australian tax payable (including Medicare levy) on Daniel's Australian income is:
($20,932 ÷ $90,000) * $60,000 = $13,954.66
Note: this calculation is based on the 2017-2018 income tax rates. If the income tax rates for future years change, you should refer to the tax rates for that current income year.
Commissioner of Taxation
5 December 2018
Appendix 1 - Explanation
|This Appendix is provided as information to help you understand how the Commissioner's view has been reached. It does not form part of the binding public ruling.|
36. Subsection 6-5(2) of the ITAA 1997 provides that the assessable income of a resident taxpayer includes ordinary income derived directly or indirectly from all sources, whether in or out of Australia, during the income year.
Where a resident, being a natural person, has been engaged in foreign service for a continuous period of not less than 91 days, any foreign earnings derived by the person from that foreign service are exempt from tax.
41. However, subsection 23AG(1AA), which applies to foreign earnings derived on or after 1 July 2009 from foreign service performed on or after 1 July 2009, provides that those foreign earnings will not be exempt under section 23AG unless the continuous period of foreign service is directly attributable to an activity that is listed in subsection 23AG(1AA) (see paragraphs 75 and 76 of this Ruling).
42. Further, certain foreign earnings that meet the requirements of subsection 23AG(1) and 23AG(1AA) may not be exempt from tax under section 23AG if the amount is exempt from income tax in the foreign country only because of one or more of the reasons listed in subsection 23AG(2) (see paragraphs 77 to 81 of this Ruling).
- the taxpayer must be a 'resident of Australia'
- the taxpayer must be 'engaged in foreign service'
- the foreign service must be for a 'continuous period of not less than 91 days'
- the taxpayer must derive 'foreign earnings' from that 'foreign service'
- the foreign service must be directly attributable to an activity that is listed in subsection 23AG(1AA), and
- the foreign earnings must not be covered by subsection 23AG(2).
Resident of Australia
44. The determination of a person's residency status depends on that person's circumstances and is a determination made in relation to each year of income. For further information see Taxation Ruling IT 2650 Income tax: residency - permanent place of abode outside Australia. This Ruling only applies to the class of entities described in paragraph 3 of this Ruling who remain Australian residents for tax purposes during their deployment to Jordan.
Engaged in foreign service
Continuous period of not less than 91 days
49. Each AFP employee based in Jordan is expected to serve continuously in Jordan for a period of at least 91 days. These periods of 'foreign service', if met, satisfy the test that Australian residents working overseas must be engaged in foreign service 'for a continuous period of not less than 91 days'.
50. Should an AFP employee depart Jordan prior to the completion of 91 days of continuous service, that employee will normally be ineligible for exemption. However, some temporary absences do not break continuous foreign service, as explained below.
51. If a taxpayer dies at a time when they have been engaged in foreign service for a continuous period of less than 91 days, subsection 23AG(1A) deems the taxpayer to have satisfied the 91-day rule if they would otherwise have continued to be engaged in that foreign service and met the 91-day rule.
Temporary absences forming part of a period of foreign service
52. Subsection 23AG(6) treats certain temporary absences from foreign service as forming part of the period of foreign service. The Commissioner's view of the application of that subsection is contained in TD 2012/8.
54. 'Recreation leave' is leave in the nature of paid holidays to which an employee has accrued an entitlement. Usually it is the employee's accrued annual leave. Leave which fits this description is 'recreation leave', even if it is not called this.
- leave that is not in the nature of paid holidays, such as weekends, rostered days off, flexidays, and days off in lieu
- public holidays
- leave wholly or partly attributable to a period of employment other than that of foreign service
- long service leave, furlough, extended leave or similar leave, and
- leave without pay or on reduced pay.
- for employees covered by the EA - at six weeks plus four Mandatory Rest days (MRDs) per annum, and
- for employees covered by the ELEA - at five weeks per annum.
58. Where an AFP appointee is temporarily absent from foreign service due to an absence on recreation leave as defined above, these absences will be taken to form part of the period of foreign service. Given that the Single Determination stipulates the freezing of leave balances accrued before Assignment to Jordan, during the period of the Assignment, it will not be possible for AFP appointees to take recreation leave wholly or partly accrued while outside the period of foreign service, until the Assignment has ended.
59. Given the nature of the overseas deployment, it is considered that the recreation leave granted to AFP employees deployed to Jordan is reasonable. This recreation leave is wholly attributable to the period of foreign service and forms part of the continuous period of 'foreign service' for the purposes of subsection 23AG(1).
- personal leave relating to their sickness or an accident, or
- miscellaneous leave with pay or personal leave because of an accident, illness or death of another person where the leave is for a short period.
Temporary absences not breaking the period of foreign service: the legislative rule
61. Where an employee takes leave other than the leave outlined at: paragraphs 56 to 60 of this Ruling, they need to determine whether the continuity of service can be maintained (subsection 23AG(6A)).
Continuity of the period of foreign service - 1/6th legislative rule
63. The 1/6th legislative rule allows two or more continuous periods of foreign service to be joined as a continuous period of foreign service unless, at any time, the total period of absence (in days) between the period of foreign service exceeds 1/6th of the total number of days of foreign service.
64. If the period of absence exceeds 1/6th of the total period of foreign service at any time, continuity of foreign service is broken. The AFP employee will begin a new period of foreign service when he or she next engages in foreign service and must determine whether that period of foreign service lasts for at least 91 continuous days (subsection 23AG(6A)).
foreign earnings means income consisting of earnings, salary, wages, commission, bonuses or allowances, or of amounts included in a person's assessable income under Division 83A of the Income Tax Assessment Act 1997 (about employee share schemes), but does not include any payment, consideration or amount that:
- is included in assessable income under Division 82 or Subdivision 83-295 or Division 301, 302, 304 or 305 of the Income Tax Assessment Act 1997; or
- is included in assessable income under Division 82 of the Income Tax (Transitional Provisions) Act 1997; or
- is mentioned in paragraph 82-135(e), (f), (g), (i) or (j) of the Income Tax Assessment Act 1997; or
- is an amount transferred to a fund, if the amount is included in the assessable income of the fund under section 295-200 of the Income Tax Assessment Act 1997.
66. However, the exclusions to the definition of 'foreign earnings' in paragraph 65 of this Ruling are not relevant to this scheme as they relate to pensions, annuities, employment termination payments and other similar amounts.
69. The transfer allowance that is covered in section 3.1.1 of the Single Determination is not 'foreign earnings' for purposes of the definition in subsection 23AG(7) and will not be exempt foreign services income under section 23AG.
From that foreign service
71. To qualify for the exemption the 'foreign earnings' must be derived 'from that foreign service'. That does not mean that the foreign earnings need to be received at the time of engaging in foreign service. The important test is that the foreign earnings need to be attributable to that period of service in a foreign country rather than to a period before or after the period of foreign service.
72. In the case of allowances paid after the taxpayer returns to Australia that relate to the period of foreign service, such allowances are treated as foreign earnings derived from that foreign service. Also, any advances against salary or allowances paid to the taxpayer prior to the undertaking of foreign service would be treated as foreign earnings from foreign service if they arise from the undertaking of that foreign service.
73. The salary that is paid when taking recreation leave that accrued during the period of foreign service is also considered to be foreign earnings from that service even though the recreation leave may be taken after the completion of the foreign service.
- special circumstances composite
- higher duties allowance
- flexibility allowance
- cost of living allowance
- overseas allowance
- unaccompanied location allowance
- location allowance
- field allowance
- reunion fare allowance
- respite fare allowance, and
- accompanied allowances.
- an aid worker who is not a government employee and who is employed in the delivery of Australian official development assistance (paragraph 23AG(1AA)(a))
- an aid or charitable worker employed by an organisation in providing overseas aid relief (paragraphs 23AG(1AA)(b) and (c))
- a specified government employee deployed overseas as a member of a disciplined force (paragraph 23AG(1AA)(d)), or
- an employee undertaking an activity of a kind specified in the regulations (paragraph 23AG(1AA)(e)).
Certain foreign earnings not exempt
77. Subsection 23AG(2) provides that no exemption is available under subsection 23AG(1) in circumstances where an amount of foreign earnings derived in a foreign country is exempt from tax in the foreign country only because of:
- a double tax agreement or a law of a country that gives effect to such an agreement (paragraphs 23AG(2)(a) and (b))
- a law of that foreign country which 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)), and
- a law or international agreement dealing with privileges and immunities of diplomats or consuls or of persons connected with international organisations (paragraphs 23AG(2)(e), (f) and (g)).
79. The laws of Jordan provide for the imposition of income tax on income derived in the capacity of an employee or from personal services, and do not exempt employment income in general from income tax.
81. As a result, the foreign earnings of the deployed AFP employees are not exempt from tax in Jordan only for a reason in subsection 23AG(2). Therefore, subsection 23AG(2) will not operate to deny the 'foreign earnings' exemption under subsection 23AG(1).
Exemption with progression
82. The 'foreign earnings' of AFP employees that are exempt from Australian tax under section 23AG are nevertheless taken into account in calculating the Australian tax on other assessable income derived by the employee (subsection 23AG(3)).
83. Tax on other assessable income will be calculated by applying to the non-exempt income (for example, Australian salary and investment income), the notional average rate of tax payable on the sum of exempt income and non-exempt income.
84. In calculating these amounts, any deductions that relate to the exempt income are allowed as if the exempt income was assessable income. That is, expenses which relate directly to earning income in Jordan are deductible from that exempt income.
85. Note that, to the extent that work-related expenses are incurred in producing exempt income, those expenses are not deductible from assessable income.
Pay As You Go (PAYG) withholding
86. Where the whole of a payment of salary and allowances made to an AFP employee deployed to Jordan is exempt income, the entity making the payment is not required to withhold an amount under Division 12 of Schedule 1 to the Taxation Administration Act 1953 (PAYG withholding).
Appendix 2 - Detailed contents list
|Summary - what this Ruling is about||1|
|Class of entities||3|
|Date of effect||7|
|Salary payments and allowance entitlements||12|
|Leave entitlements and arrangements for leave||16|
|Overseas Annual Leave||17|
|Overseas Personal Leave||22|
|Temporary absences form part of foreign service||29|
|Absence from work because of accident or illness||31|
|Exemption with progression||34|
|Appendix 1 - Explanation||36|
|Resident of Australia||44|
|Engaged in foreign service||45|
|Continuous period of not less than 91 days||49|
|Temporary absences forming part of a period of foreign service||52|
|Temporary absences not breaking the period of foreign service: the legislative rule||61|
|Continuity of the period of foreign service - 1/6th legislative rule||63|
|From that foreign service||71|
|Certain foreign earnings not exempt||77|
|Exemption with progression||82|
|Pay As You Go (PAYG) withholding||86|
|Appendix 2 - Detailed contents list||87|
You are free to copy, adapt, modify, transmit and distribute this material as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).
See paragraph 2 of Taxation Determination TD 2013/18 Income tax: are foreign earnings derived by Australian Defence Force (ADF) members from a period of leave as a result of an accident or illness that occurred while deployed overseas as a member of a disciplined force exempt under section 23AG of the Income Tax Assessment Act 1936 (ITAA 1936)?
See Example 13 of TD 2012/8.
Individual taxpayers must report exempt foreign employment income (net of related deductions) in their tax returns at Item 20, label N of the Supplement.
Paragraph 8-1(2)(c) of the Income Tax Assessment Act 1997.
Subsection 12-1(1) of Schedule 1 to the Taxation Administration Act 1953.
Not previously issued as a draft
ITAA 1936 23AG
ITAA 1936 23AG(1)
ITAA 1936 23AG(1AA)
ITAA 1936 23AG(1AA)(a)
ITAA 1936 23AG(1AA)(b)
ITAA 1936 23AG(1AA)(c)
ITAA 1936 23AG(1AA)(d)
ITAA 1936 23AG(1AA)(e)
ITAA 1936 23AG(1A)
ITAA 1936 23AG(2)
ITAA 1936 23AG(2)(a)
ITAA 1936 23AG(2)(b)
ITAA 1936 23AG(2)(c)
ITAA 1936 23AG(2)(d)
ITAA 1936 23AG(2)(e)
ITAA 1936 23AG(2)(f)
ITAA 1936 23AG(2)(g)
ITAA 1936 23AG(3)
ITAA 1936 23AG(6)
ITAA 1936 23AG(6)(b)
ITAA 1936 23AG(6A)
ITAA 1936 23AG(7)
ITAA 1997 6-5
ITAA 1997 6-5(2)
ITAA 1997 6-15(2)
ITAA 1997 8-1(2)(c)
ITAA 1997 11-15
ITAA 1997 Div 82
ITAA 1997 82-135(e)
ITAA 1997 82-135(f)
ITAA 1997 82-135(g)
ITAA 1997 82-135(i)
ITAA 1997 82-135(j)
ITAA 1997 83-295
ITAA 1997 Div 83A
ITAA 1997 295-200
ITAA 1997 Div 301
ITAA 1997 Div 302
ITAA 1997 Div 304
ITAA 1997 Div 305
Income Tax (Transitional Provisions) Act 1997
Income Tax (Transitional Provisions) Act 1997 Div 82
TAA 1953 Div 12
Australian Federal Police Act 1979
Australian Federal Police (Overseas Conditions of Service) Determination (No.1) 2013
Income & Sales Tax Department, Income Tax Law 1985 Jordan