ATO Interpretative Decision

ATO ID 2007/220 (Withdrawn)

Income Tax

Assessability of income derived by an Australian resident working in Australia as the holder of an office in an international organisation
FOI status: may be released
  • This ATO ID is withdrawn as it is no longer required following the publication of Draft Taxation Ruling TR 2019/D1 Income Tax: income of international organisations and persons connected with them that is exempt from income tax on 27 March 2019.
    This document has changed over time. View its history.

Status of this decision: Decision withdrawn 27 March 2019.
CAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

This ATOID provides you with the following level of protection:

If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.

Issue

Is the income derived by an Australian resident as the holder of an office in an international organisation, for services performed during a secondment with an Australian organisation in Australia, assessable under subsection 6-5(2) of the Income Tax Assessment Act 1997 (ITAA1997)?

Decision

No. The income derived by an Australian resident as the holder of an office in an international organisation, for services performed during a secondment with an Australian organisation in Australia, is not assessable under subsection 6-5(2) of the ITAA 1997, as the income is exempt from tax under the International Organisations (Privileges & Immunities) Act 1963 (the IO(P&I)A) and the Specialised Agencies (Privileges & Immunities) Regulations 1986 (the SA(P&I) Regs) which were made under the IO(P&I)A.

Facts

The taxpayer is an Australian citizen and a resident of Australia for tax purposes.

The taxpayer is the holder of an office in an international organisation (the international organisation). The office is not a 'high office', as that term is defined in the SA(P&I) Regs.

The international organisation is listed in the SA(P&I) Regs.

The taxpayer was on secondment from the international organisation to an Australian organisation in Australia for a period of two years.

The taxpayer remained a staff member of the international organisation during the secondment period in Australia, was bound by the standards of conduct for staff members and continued to be subject to the international organisation's Staff Regulations and Rules.

The taxpayer continued to be subject to the authority of the Director-General of the international organisation and performed their duties under the overall supervision of the international organisation.

The taxpayer provided professional services to the Australian organisation during the secondment in Australia.

The taxpayer's remuneration was paid by the international organisation, which was reimbursed by the Australian organisation.

The taxpayer's duties were performed in Australia.

Reasons for Decision

Subsection 6-5(2) of the ITAA 1997 provides that the assessable income of an Australian resident includes ordinary income derived from all sources, whether in or out of Australia, during the income year.

Income from professional services provided as an employee is ordinary income for the purposes of subsection 6-5(2) of the ITAA 1997.

However, subsection 6-15(2) of the ITAA 1997 provides that if an amount is exempt income then it is not assessable income.

Subsection 6-20(1) of the ITAA 1997 provides that an amount of ordinary income is exempt income if it is made exempt from income tax by a provision of the ITAA 1997 or another Commonwealth law.

The IO(P&I)A is a Commonwealth law under which an international organisation, and persons engaged by it, may be accorded certain privileges and immunities, including an exemption from tax.

Subsection 5(1) of the IO(P&I)A provides that the SA(P&I) Regs may declare an organisation to be an organisation to which the IO(P&I)A applies.

Subsection 3(1) of the IO(P&I)A defines the term an 'international organisation to which this Act applies' to mean an organisation that is declared by the regulations to be an international organisation to which this Act applies.

Regulation 3 of the SA(P&I) Regs provides that each Specialized Agency is an international organisation to which the IO(P&I)A applies. The term 'Specialized Agency' is defined in Regulation 2 to mean an agency specified in column 2 of an item in the Schedule to the Regulations. The international organisation is listed as a Specialized Agency in Column 2 of the Schedule to the SA(P&I) Regs. Therefore, the international organisation is an international organisation to which the IO(P&I)A applies.

Subparagraph 6(1)(d)(i) of the IO(P&I)A provides that the regulations may confer all or any of the privileges and immunities set out in Part I of the Fourth Schedule upon a person who holds an office in an international organisation to which this Act applies, not being an office prescribed by the relevant regulations as a high office.

Entitlement to exemption from tax under the IO(P&I)A is conditional upon a person being the holder of an office in a prescribed international organisation.

Paragraph 2 of TD 92/153 provides that the phrase 'person who holds an office' in relation to a prescribed international organisation covers those people who work as employees for that organisation.

For the purposes of this case, subregulation 8(1) of the SA(P&I) Regs provides that a person who holds an office in a Specialised Agency, other than a high office, has the privileges and immunities specified in paragraph 2 of Part I of the Fourth Schedule of the IO(P&I)A.

The taxpayer holds an office in a Specialised Agency, being the international organisation. The office is not a high office.

Paragraph 2 of Part I of the Fourth Schedule to the IO(P&I)A provides an exemption from taxation on salary and emoluments derived by a person from a prescribed international organisation.

As the taxpayer is the holder of an office in an international organisation to which the IO(P&I)A applies, the income derived by the taxpayer is exempt from tax in Australia in accordance with subparagraph 6(1)(d)(i) and paragraph 2 of Part 1 of the Fourth Schedule of the IO(P&I)A.

Accordingly, the income derived by the taxpayer for the two year secondment period is exempt income under subsection 6-20(1) of the ITAA 1997. Therefore, the income is not assessable under subsection 6-5(2) of the ITAA 1997.

Date of decision:  20 November 2007

Year of income:  Year ended 30 June 2006 Year ended 30 June 2007 Year ended 30 June 2008

Legislative References:
Income Tax Assessment Act 1997
   subsection 6-5(2)
   subsection 6-15(2)
   subsection 6-20(1)

International Organisations (Privileges and Immunities) Act 1963
   subsection 3(1)
   subsection 5(1)
   subparagraph 6(1)(d)(i)
   Schedule 4, paragraph 2 of Part I

Specialised Agencies (Privileges and Immunities) Regulations 1986
   Regulation 3
   Subregulation 8(1)

Related Public Rulings (including Determinations)
TD 92/153

Related ATO Interpretative Decisions
ATO ID 2004/285
ATO ID 2004/287

Keywords
Exempt income
Office holder
International law
International tax

Siebel/TDMS Reference Number:  5630787

Business Line:  Small Business/Individual Taxpayers

Date of publication:  14 December 2007

ISSN: 1445-2782

history
  Date: Version:
  20 November 2007 Original statement
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