ATO Interpretative Decision

ATO ID 2005/127 (Withdrawn)

Income tax

• This ATO ID is withdrawn from the database due to legislative changes to section 23AG of the Income Tax Assessment Act 1936 which took effect from 1 July 2009. Despite its withdrawal, this ATOID continues to be a precedential view in respect of decisions for income years up to, and including, the 2008/2009 income year.
  This document incorporates revisions made since original publication. View its history and amending notices, if applicable.

Issue

Are the salary and wages received by a resident taxpayer from serving as a member of the Australian Defence Force (ADF) in the Federated States of Micronesia (Micronesia) with the Pacific Patrol Boat Project assessable income under subsection 6-5(2) of the Income Tax Assessment Act 1997 (ITAA 1997)?

Decision

No. The salary and wages received by a resident taxpayer from serving as a member of the ADF in Micronesia with the Pacific Patrol Boat Project are not assessable under subsection 6-5(2) of the ITAA 1997 as the salary and wages are exempt under subsection 23AG(1) of the Income Tax Assessment Act 1936 (ITAA 1936).

Facts

The taxpayer is an Australian resident for income tax purposes.

The taxpayer is a member of the ADF.

The taxpayer served in Micronesia for a continuous period of not less than 91 days as part of Australia's contribution to the Pacific Patrol Boat Project.

The Pacific Patrol Boat project is a part of Australia's Defence Cooperation Program. The program's aim is to support Australia's defence relationships in the Pacific region by contributing to the maintenance of regional security and assisting with the development of security capabilities of various South Pacific countries, including Micronesia.

The taxpayer received salary and wages from the ADF.

A certificate under paragraph 23AD(1)(a) of the ITAA 1936 has not been issued by the Chief of the Defence Force to the effect that the taxpayer is on eligible duty with a specified organisation in a specified area outside Australia.

There is no double tax agreement between Australia and Micronesia.

The Income Tax Law of Micronesia provides for the imposition of income tax on employment income and does not generally exempt such income from income tax.

The salary and wages received by the taxpayer were not exempt in Micronesia because of a law (or regulations) corresponding to the International Organizations (Privileges and Immunities) Act 1963 or under an international agreement to which Australia is a party that deals with privileges and immunities of persons connected with international organisations or relating to diplomatic or consular matters.

Under the terms of a Memorandum of Understanding (MoU) between the Governments of Australia and Micronesia, the taxpayer's salary and wages is exempt from income tax in Micronesia to the extent provided by the laws of Micronesia.

The laws of Micronesia do not provide for a specific exemption for the taxpayer's salary and wages.

Reasons for Decision

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.

Salary and wages are ordinary income for the purposes of subsection 6-5(2) of the ITAA 1997.

Subsection 6-15(2) of the ITAA 1997 provides that if an amount is exempt income it is not included in assessable income. Section 11-15 of the ITAA 1997 lists those provisions dealing with income which may be exempt. Included in this list is section 23AG of the ITAA 1936 which deals with overseas employment income.

Subsection 23AG(1) of the ITAA 1936 provides that, where a resident taxpayer is engaged in foreign service for a continuous period of not less than 91 days, any foreign earnings derived from foreign service will be exempt from tax in Australia. 'Foreign service' includes service in a foreign country in the capacity as an employee and 'foreign earnings' includes income consisting of salary and wages (subsection 23AG(7) of the ITAA 1936).

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 only because of any of the following reasons:

(a)

a law of the foreign country giving effect to a double tax agreement

(b)

a double tax agreement

(c)

provisions of a law of the foreign country under which income covered by any of the following categories is generally exempt from income tax:

(i)

income derived in the capacity of an employee

(ii)

income from personal services

(iii)

similar income

(d)

the law of the foreign country does not provide for the imposition of income tax on one or more of the categories of income mentioned in paragraph (c)

(e)

a law of the foreign country corresponding to the International Organizations (Privileges and Immunities) Act 1963 or to the regulations under that Act

(f)

an international agreement to which Australia is a party and that deals with:

(i)

diplomatic or consular privileges and immunities

(ii)

privileges and immunities in relation to persons connected with international organisations

(g)

a law of the foreign country giving effect to an agreement covered by paragraph (f).

There is no double tax agreement between Australia and Micronesia. Therefore, paragraphs 23AG(2)(a) and 23AG(2)(b) of the ITAA 1936 do not apply.

The law of Micronesia provides for the imposition of income tax on employment income and does not generally exempt such income from income tax. Therefore, paragraphs 23AG(2)(c) and 23AG(2)(d) of the ITAA 1936 do not apply.

The salary and wages received by the taxpayer were not exempt in Micronesia because of a law (or regulations) of Micronesia corresponding to the International Organizations (Privileges and Immunities) Act 1963 and as such paragraph 23AG(2)(e) of the ITAA 1936 does not apply.

In circumstances where the foreign earnings are exempt from tax in the foreign country because of another reason (for example, a MoU and/or a specific exemption in the foreign country's tax law), subsection 23AG(2) of the ITAA 1936 will not apply to deny the exemption under subsection 23AG(1) of the ITAA 1936. This is because the foreign earnings are not exempt in the foreign country solely because of events listed in that subsection. The foreign earnings are exempt because of the MoU and/or specific exemption, which is not a reason listed in subsection 23AG(2) of the ITAA 1936.

The taxpayer's salary and wages were only exempt from tax in Micronesia under the terms of an MoU and in the absence of any specific enabling exemption provision under the laws of Micronesia, the income is subject to taxation in that country.

Therefore, as none of the reasons listed in subsection 23AG(2) of the ITAA 1936 apply, the salary and wages received by an ADF member from serving in Micronesia will be exempt from income tax under subsection 23AG(1) of the ITAA 1936 and will not be assessable income under subsection 6-5(2) of the ITAA 1997.

Year of income:  Year ended 30 June 1998

Legislative References:
Income Tax Assessment Act 1936
   paragraph 23AD(1)(a)
   section 23AG
   subsection 23AG(1)
   subsection 23AG(2)
   paragraph 23AG(2)(a)
   paragraph 23AG(2)(b)
   paragraph 23AG(2)(c)
   paragraph 23AG(2)(d)
   paragraph 23AG(2)(e)
   paragraph 23AG(2)(f)
   paragraph 23AG(2)(g)
   subsection 23AG(7)

Keywords
Defence force members
Defence force overseas service
Foreign income
Foreign salary & wages
International tax
Federated States of Micronesia

Business Line:  Public Groups and International

Date of publication:  13 May 2005

ISSN: 1445-2782