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Edited version of your written advice
Authorisation Number: 1013043471313
Date of advice: 29 June 2016
Ruling
Subject: Foreign employment income
Question and answer
Is the foreign employment income and allowances you derive from working in country A exempt income in Australia under section 23AG of the Income Tax Assessment Act 1936 (ITAA 1936)?
Yes.
This ruling applies for the following period
Year ending 30 June 2016
The scheme commenced on
On or after 1 June 2014
Relevant facts
You are an Australian resident for taxation purposes.
You are employed by # on an AusAID funded project administered by #.
You have been employed by # since # to # to carry out Official Development Assistance (ODA).
You will be engaged in foreign employment for more than 91 days.
You are exempt from paying income tax in country A under the MOU between the country A Government and the Government of Australia.
Relevant legislative provisions
Income Tax Assessment Act 1936 Section 23AG
Reasons for decision
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.
You are employed by # to carry out ODA which is funded by AusAID.
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).
There is a MOU between Australia and country A. Therefore, subsection 23AG(2) of the ITAA 1936 will not apply to deny the exemption under subsection 23AG(1) of the ITAA 1936.
In your case, you are an Australian resident for taxation purposes and are engaged in ODA for a continuous period of not less than 91 days.
Accordingly, the salary and allowances you receive during your employment in country A are exempt from income tax in Australia under subsection 23AG(1) of the ITAA 1936.
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