| Disclaimer This edited version has been archived due to the length of time since original publication.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 written advice
Authorisation Number: 1012792243075
Date of advice: 20 April 2015
Ruling
Subject: 23AG income
Questions and answers
Is the foreign employment income and allowances you derive from working overseas exempt income in Australia under section 23AG of the Income Tax Assessment Act 1936 (ITAA 1936)?
No.
This ruling applies for the following periods:
Year ended 30 June 2014
Year ending 30 June 2015
Year ending 30 June 2016
Year ending 30 June 2017
The scheme commenced on:
1 July 2013
Relevant facts and circumstances
You are an Australian resident for income tax purposes.
You are an ongoing employee with a government department
You have been posted overseas for more than 91 days.
Your posting is in relation to the administration of official development assistance (ODA).
You travel to the overseas country on a diplomatic passport.
You do not pay tax in destination country.
Relevant legislative provisions:
Income Tax Assessment Act 1936 Subsection 23AG(1)
Income Tax Assessment Act 1936 Subsection 23AG(7)
Income Tax Assessment Act 1936 Section 23AG
Income Tax Assessment Act 1936 Subsection 23AG(2)
Reasons for decision
Subsection 23AG(1) of the Income Tax Assessment Act 1936 (ITAA1936) 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 the foreign service will be exempt from tax in Australia. The term 'foreign service' means service in a foreign country as the holder of an office or in the capacity of an employee and the term 'foreign earnings' includes income consisting of salary and wages and allowances.
Subsection 23AG (1AA) of the ITAA 1936 provides that foreign earnings are not exempt from tax unless the continuous period of Foreign Service is directly attributable to any of the following:
● Delivery of Australian official development assistance by your employer.
● Activities of your employer in operating a public fund declared by the Treasurer to be a developing country relief fund, or a public fund established and maintained to provide monetary relief to people in a developing foreign country that has experienced a disaster (a public disaster relief fund).
● Activities of your employer as a prescribed charitable or religious institution exempt from Australian income tax because it is located outside Australia or the institution is pursuing objectives outside Australia.
● Deployment outside Australia by an Australian government (or an authority thereof) as a member of a disciplined force.
Your employment is in relation to the delivery of ODA. You satisfy one of the conditions for exemption under subsection 23AG(1AA) of the ITAA 1936.
Subsection 23AG(2) of the ITAA 1936 provides that no exemption is available under subsection 23AG(1) of the ITAA 1936 in circumstances where an amount of foreign earnings derived from service in a foreign country is exempt from tax in the foreign country solely because of:
● a tax treaty or a law of a country that gives effect to such an agreement (paragraphs 23AG(2)(a) and (b) of the ITAA 1936);
● the law of a foreign country generally exempts from, or does not provide for the imposition of income tax on income derived in the capacity of an employee, income from personal services or any other similar income (paragraphs 23AG(2)(c) and (d) of the ITAA 1936), or
● a law or international agreement dealing with privileges and immunities of diplomats or consuls or of persons connected with international organisations applies (paragraphs 23AG(2)(e), (f) and (g) of the ITAA 1936).
In order for your employment income to be exempt from tax in Australia under section 23AG of the ITAA 1936, the income must not be exempt from tax in the overseas country only because of one of the reasons listed in subsection 23AG(2) of the ITAA 1936.
In your case, your income derived in the overseas country is only exempt from tax in the overseas country due to the fact that you are a diplomat.
Accordingly, the salary and allowances you receive during your employment in the overseas country is not exempt from income tax in Australia under subsection 23AG(1) of the ITAA 1936 and must be declared in your Australian tax return.
Copyright notice
© Australian Taxation Office for the Commonwealth of Australia
You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).
