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This edited version has been archived due to the length of time since original publication.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.

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Edited version of your written advice

Authorisation Number: 1012733128368

Ruling

Subject: Foreign source income

Question and Answer

Is the income you will derive from your employment as a pilot in the foreign country assessable in Australia?

No.

This ruling applies for the following period(s)

Year ended 30 June 2015

Year ended 30 June 2016

Year ended 30 June 2017

Year ended 30 June 2018

Year ended 31 December 2019

The scheme commences on

1 January 2015

Relevant facts and circumstances

You have been offered a contract with a company in the foreign country as a pilot.

As a pilot, you will be flying international routes from and back to the foreign country.

All recurrent flight simulations, flight checks, medical examinations will all be conducted in the foreign country.

Your foreign employer will subject the foreign country's income tax from your pilot's salary.

You consider yourself to be an Australian resident for taxation purposes as your family home, spouse will remain in Australia. Your days off will be spent in Australia.

Relevant legislative provisions

Income Tax Assessment Act 1997 Subsection 6-5(2)

International Tax Agreements Act 1953 Section 5

Income Tax Assessment Act 1936

Reasons for decision

Subsection 6-5(2) of the Income Tax Assessment Act 1997 (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.

In determining your liability to pay tax in Australia it is necessary to consider not only the domestic income tax laws but also any applicable double tax agreements.

Section 4 of the International Tax Agreements Act 1953 (Agreements Act) incorporates that Act with the Income Tax Assessment Act 1936 (ITAA 1936) and the ITAA 1997 so that all three Acts are read as one. The Agreements Act overrides both the ITAA 1936 and ITAA 1997 where there are inconsistent provisions (except in some limited situations).

Section 5 of the Agreements Act states that, subject to the provisions of the Agreements Act, any provision in an Agreement listed in section 5 has the force of law. The foreign country Agreement is listed in section 5 of the Agreements Act.

The foreign country Agreement is located on the Austlii website (www.austlii.edu.au) in the Australian Treaties Series database. The foreign country Agreement operates to avoid the double taxation of income received by residents of Australia and The foreign country.

The foreign country Agreement states at Article 15, paragraph 3:

In your case, as your employment will be exercised for an enterprise based in the foreign country which will involve international flights between the foreign country and other countries, the income will be taxable only in the foreign country and will not, therefore, be assessable in Australia under section Subsection 6(2) of the ITAA 1997.

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