ATO Interpretative Decision

ATO ID 2003/886 (Withdrawn)

Income Tax

Exempt Income: payment by a state government department for the provision of training in Australia by overseas expert
FOI status: may be released

This ATO ID is withdrawn because, following legislative changes which became effective on 14 September 2006, it is no longer current for years of income happening on or after 30 June 2006. Despite its withdrawal from the database, this ATO ID continues to be a precedential view in respect of decisions dealing with the application of paragraph 23(b) of the Income Tax Assessment Act 1936 (ITAA 1936) occurring before that date.

This document incorporates revisions made since original publication. View its history and amending notices, if applicable.

Status of this decision: Decision Withdrawn 20 March 2008

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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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

Are the payments made by a state government department to a director of a United States of America (US) resident company for personal services performed in Australia exempt from tax under paragraph 23(b) of the Income Tax Assessment Act 1936 (ITAA 1936)?

Decision

No. The payments made by the state government department to a director of a US resident company for personal services performed in Australia are not exempt income under paragraph 23(b) of the ITAA 1936.

Facts

The director of a US resident company provides specialised training to the staff of a state government department at a number of venues in Australia under a contract between the government department and the US company.

The services provided by the director involve the provision of training to the department's staff with a view to advance their skills in carrying out their duties.

The department makes payments for the personal services rendered by the director in Australia.

Reasons for Decision

Paragraph 23(b) of the ITAA 1936 exempts the remuneration paid by the government of the Commonwealth or of a State to a non-resident for expert advice to that government or as a member of a Royal Commission.

The exemption under paragraph 23(b) of the ITAA 1936 only applies to remuneration paid by the government of the Commonwealth or of a State to a non-resident for expert advice to that government.

The provision of specialised training to a state government's department staff with a view to advance their skills in carrying out their duties is not 'advice to [the] government', i.e. advice for use by the government itself in order for the government to determine what action to take (for example, the preparation of a report on a specific topic). Although the training is of a specialised nature, providing training to staff of a government department is not the same as providing expert advice to the government.

Accordingly, the payments made by the state government department to a director of a US resident company for personal services performed in Australia by the director are not exempt income under paragraph 23(b) of the ITAA 1936.

Date of decision: 8 August 2003

Year of income: Year ended 30 June 2003

Legislative References:
Income Tax Assessment Act 1936
paragraph 23(b)

Related ATO Interpretative Decisions
ATO ID 2003/887
ATO ID 2003/888
ATO ID 2003/889

Keywords
Exempt income
Staff training expenses
United States

Business Line: Public Groups and International

Date of publication: 3 October 2003

ISSN: 1445-2782

history

	Date:	Version:
	8 August 2003	Original statement
You are here →	20 March 2008	Archived

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