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This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law.

You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4.

Edited version of your private ruling

Authorisation Number: 1012326089069

Ruling

Subject: Income earned while deployed overseas

Question and answer

Is the salary you derive from your foreign service in Country A exempt from income tax in Australia?

Yes.

This ruling applies for the following periods:

Year ending 30 June 2013

Year ending 30 June 2014

The scheme commenced on:

1 July 2012

Relevant facts and circumstances

This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.

You are a resident of Australia for tax purposes.

You will be engaged in foreign service in Country A for a continuous period of more than 91 days.

You have taken up a non-diplomatic role in Country A. The funding of your role is through an official development assistance program.

Your income is exempt from tax in Country A because of a memorandum of understanding between Country A and Australia.

You have a letter accepting your deployment to Country A.

Relevant legislative provisions:

Income Tax Assessment Act 1936 Section 23AG

Reasons for decision

Subsection 23AG(1) of the Income Tax Assessment Act 1936 (ITAA 1936) provides that, where Australian resident individuals are engaged in foreign service for a continuous period of not less than 91 days, foreign earnings derived from this foreign service are exempt from Australian tax.

In your case, you are a resident of Australia and you will be engaged in foreign service for a continuous period of more than 91 days.

Foreign earnings derived on or after 1 July 2009 from foreign service performed on or after 1 July 2009 must satisfy subsection 23AG(1AA) of the ITAA 1936 in order to be eligible for the exemption. The foreign service must be for a continuous period and be directly attributable to any of the following:

You have taken up a non-diplomatic role in Country A as an advisor. The funding of your role is through an AusAID official development assistance program, and you have been deployed to undertake this role.

Therefore, your foreign service is directly attributable to the delivery of Australian official development assistance by your employer.

Subsection 23AG(2) of the ITAA 1936 provides that the exemption from Australian tax will not apply where the foreign earnings derived in a foreign country are only exempt from income tax in the foreign country because of any of the following:

In your case, your income is exempt from tax in Country A because of a memorandum of understanding between Country A and Australia.

Therefore, your income is not exempt from tax for any of the reasons set out in subsection 23AG(2) of the ITAA 1936.

You meet all the requirements of section 23AG of the ITAA 1936. Therefore, the income you derive from your foreign service is exempt from income tax in Australia.

Note

It is important to note that foreign earnings exempt under section 23AG of the ITAA 1936 are taken into account in calculating the tax payable on other income derived by a taxpayer. This method of calculation referred to as exemption with progression prevents the exempt income from reducing the Australian tax payable on the other income. This income needs to be included as exempt foreign salary and wage income in your Australian tax return.


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