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This edited version has been archived due to the length of time since original publication.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

Authorisation Number: 1013040900942

Date of advice: 29 June 2016

Ruling

Subject: International Income

Questions and answers:

This ruling applies for the following period:

01 July 20xx to 30 June 20zz

The scheme commences on:

1 July 20xx

Relevant facts and circumstances

You will travel to Country X to be a volunteer under the Australian Volunteers program. You are a resident of Australia for taxation purposes.

The program forms part of Australia's official development assistance (ODA). The program is funded by a specific Department.

Your period of service as a volunteer under the program in Country X is expected to be XX months commencing in July 20xx.

During the period you volunteer under the program in Country X you believe that you will not be either an employee or an independent contractor.

As a result of being a participant in the program you expect to receive the following allowances in relation to your service as a volunteer

The allowances will be paid to you by Program.

The settlement/resettlement allowance will be paid to you before your period of service as a volunteer under the program commences.

The remaining allowances will be paid during your period of volunteering. Country X imposes income tax however you believe you will be free of local income tax as you will be classified as a "Non-Resident Foreigner" under Chapter Y, Section Z (l) of the local income tax law.

As a volunteer under the program in Country X you are not covered by any double taxation agreement of inter-government Memorandum of Understanding as no such MOU has been negotiated with Country X as yet.

Accordingly, you will rely upon your interpretation of the local income tax law in determining the taxation of your allowances whilst in Country X.

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 6-10

Income Tax Assessment Act 1997 Section 15-2

Income Tax Assessment Act 1936 Section 23AG

Reasons for decision

Assessable income - general

If you are a resident of Australia for taxation purposes, allowances paid to you in respect of employment or services rendered are generally included in your assessable income as amounts of statutory income under the provisions of sections 6-10 and 15-2 of the Income Tax Assessment Act 1997 (ITAA 1997).

However, if you have been employed overseas on foreign service, the provisions of section 23AG of the Income Tax Assessment Act 1936 (ITAA 1936) may provide an exemption from taxation in Australia on the income earned from that foreign service.

Exemption from taxation under section 23AG of the Income Tax Assessment Act 1936

Subsection 23AG(1) of the ITAA 1936 provides that foreign earnings are exempt from income tax in Australia if all of the following requirements are satisfied:

During the period of time you expect to volunteer you will remained a resident of Australia for taxation purposes and the period of time you expect to volunteer will exceeded 91 days.

Foreign service is defined for the purposes of section 23AG of the ITAA 1936 to include service in a foreign country in the capacity as an employee and foreign earnings are defined to include allowances (subsection 23AG(7) of the ITAA 1936).

Although you were engaged as a volunteer for the program, you are considered to be employed by the Program during your period of volunteering. Accordingly, we consider you were engaged in foreign service as defined in subsection 23AG(7) of the ITAA 1936. It follows that the allowances paid to you may be exempt from taxation under section 23AG of the ITAA 1936 provided it can be shown:

Settling/resettling allowance

Class Ruling CR 2012/16 Income tax: assessable income: Australian Federal Police personnel deployed to the Republic of South Sudan as part of the United Nations peacekeeping force provides some guidance on when a payment will be considered to have been derived 'from your foreign service' for the purposes of section 23AG of the ITAA 1936. Paragraph 68 of Class Ruling CR 2012/16 specifies the test to be applied is that the foreign earnings cannot be attributable to a period before or after the period of foreign service.

The settlement/resettlement allowance you received was paid to you before your period of volunteering commenced. As a result, that allowance will not qualify for the exemption from taxation under section 23AG of the ITAA 1936 because it cannot be said to have been 'derived from your foreign service'.

Living and accommodation allowances

In contrast, the living and accommodation allowances can be said to have been derived from your foreign service because those allowances will be paid to you during your period of volunteering. Accordingly, those allowances will qualify for the exemption from taxation under section 23AG of the ITAA 1936 if the remaining requirements for the exemption to apply are met.

Taxation Ruling TR 2013/7 Income tax: foreign employment income: interpretation of subsection 23AG(1AA) of the Income Tax Assessment Act 1936 provides guidance on when an employer can be considered to be delivering Australian ODA. Having regard to Example 2 in Taxation Ruling TR 2013/7 (employees of an entity contracted by DFAT to deliver Australian ODA) we consider is delivering Australian ODA for the purposes of section 23AG of the ITAA 1936. The question then becomes, as a volunteer, were you an employee of the Program?

Although the term 'employee' is included in the definitions in subsection 23AG(7) of the ITAA 1936, the subsection does not actually define the word: it simply provides that individuals employed by certain entities are employees for the purposes of section 23AG of the ITAA 1936. A volunteer engaged by under the program is not caught by the inclusion in subsection 23AG(7) of certain individuals as employees for the purposes of section 23AG of the ITAA 1936, so further examination of what constitutes an employee for the purposes of section 23AG is required.

Taxation Ruling TR 2005/16 Income Tax: Pay As You Go - withholding from payments to employees provides some guidance on whether or not an individual is an employee. Having regard to the general principles established in Taxation Ruling TR 2005/16 we consider that although you were engaged as a volunteer, was in a position to have a sufficient degree of control over your activities to the extent that you can be considered an employee for the purposes of section 23AG of the ITAA 1936.

Considering the above and referring again to Example 2 in TR 2013/7 we can conclude that your foreign service was directly attributable to the delivery of Australian ODA by your employer.

The final matter for consideration is whether or not the exception provision in subsection 23AG(2) of the ITAA 1936 applies to exclude you from entitlement to the 23AG tax exemption on your foreign earnings.

In simple terms, subsection 23AG(2) of the ITAA 1936 provides that your foreign earnings must be exempt from taxation in the foreign country concerned for a reason other than, or in addition to, any one of the reasons listed in subsection 23AG(2).

There is no memorandum of understanding between Australia and Country X to determine the taxability of these allowances in Country X. However you argue that these allowances will be tax free under Chapter Y, Section Z (l) of the local income tax law.

The local income tax law applies to you and under local law, your foreign earnings are exempt from taxation. This is a reason in addition to those listed in subsection 23AG(2) of the ITAA 1936. Accordingly, the exception provision in subsection 23AG(2) does not apply to exclude you from the 23AG tax exemption on your foreign earnings.

Conclusion

The settlement/resettlement allowance paid to you in relation to your volunteering with the program is not excluded from taxation in Australia under the provisions of section 23AG of the ITAA 1936. That allowance is included in your assessable income in Australia under the provisions of section 6-10 and 15-2 of the ITAA 1997.

The living and accommodation allowances paid to you in relation to your volunteering with the program are excluded from your assessable income in Australia under the provisions of section 23AG of the ITAA 1936.

ATO view documents

Taxation Determination TD 2005/14 Income tax: does subsection 23AG(2) of the Income Tax Assessment Act 1936 apply where foreign earnings are exempt from tax in a foreign country for one or more of the reasons listed in that subsection and there is no additional reason for exempting that income?

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