Edited version of your private ruling

Authorisation Number: 1012038539254

This edited version of your ruling will be published in the public register of private binding rulings after 28 days from the issue date of the ruling. The attached private rulings fact sheet has more information.

Please check this edited version to be sure that there are no details remaining that you think may allow you to be identified. If you have any concerns about this ruling you wish to discuss, you will find our contact details in the fact sheet.

Ruling

Subject: Foreign Income

Question 1:

Is the salary you receive from employment in Country A exempt from income tax in Australia under section 23AG of the Income Assessment Act 1936 (ITAA 1936)?

Answer 1:

Yes.

Question 2

Is the transfer allowance you receive in relation to your employment in Country A exempt from income tax in Australia under section 23AG of the ITAA 1936?

Answer

No.

Question 3

Are the overseas allowances you receive in relation to your employment in Country A exempt from income tax in Australia under section 23AG of the ITAA 1936?

Answer

Yes.

This ruling applies for the following period

Year ending 30 June 2012.

Year ending 30 June 2013.

The scheme commences on

1 July 2011.

Relevant facts

You are an Australian resident for taxation purposes.

You have been appointed to undertake a deployment to Country A on a specific project in a specific role for a period of 12 months commencing some time in the 2011-12 income year. You also have the option of extending it for another 12 months.

You are an employee of an Australian government agency.

Your foreign earnings are directly attributable to the delivery of Australian official development assistance by your employer.

In addition to your salary, you will receive a transfer allowance and overseas allowances.

The transfer allowance is paid for costs associated with preparing for departure and returning from your deployment.

The overseas allowances are paid to compensate for costs arising from the foreign service and for the hardship attributable to the foreign service.

You will not take any breaks other than your recreation leave that accrues during your deployment to Country A.

You will not perform any work-related duties if you undertake any breaks in Australia.

Australia has a tax treaty with Country A.

Country A taxes employment income under its domestic law.

Your foreign employment income is exempt from income tax in Country A under the terms of the Treaty on Development Co-operation between the Government of Australia and the Government of Country A.

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(1AA)

Income Tax Assessment Act 1936 Subsection 23AG(6)

Income Tax Assessment Act 1936 Subsection 23AG(2)

Income Tax Assessment Act 1936 Section 23AG(2)(b)

Reasons for decision

Subsection 23AG(1) of the (ITAA 1936) provides that foreign earnings of an Australian resident derived during a continuous period of foreign service of not less than 91 days employment in a foreign country are exempt from tax in Australia.

Foreign earnings include income consisting of salary, wages, bonuses or allowances (subsection 23AG(7) of the ITAA 1936).

To qualify for the exemption the foreign earnings must be derived from the foreign service. That does not mean that the foreign earnings need to be derived at the time of engaging in foreign service. The important test is that the foreign earnings, when derived, need to be derived as a result of the undertaking of that foreign service.

Section 23AG of the ITAA 1936 has been amended so that foreign employment income derived by Australian residents will only be exempt in certain circumstances. These amendments are effective from 29 June 2009.

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:

· the delivery of Australia's overseas aid program by the individual's employer;

· the activities of the individual's employer in operating a developing country relief fund or a public disaster relief fund;

· the activities of the individual's employer being a prescribed institution that is exempt from Australian tax; or

· the individual's deployment outside Australia by an Australian government (or an authority thereof) as a member of a disciplined force.

In your case, you have been appointed to undertake a deployment to Country A on a specific project in a specific role.

As your deployment is directly attributable to the delivery of an Australian overseas aid program by your employer, you satisfy one of the conditions for exemption under subsection 23AG(1AA) of the ITAA 1936.

In addition to your salary, you receive a transfer allowance and overseas allowances.

Transfer allowance

The transfer allowance is paid to you to cover costs associated with preparing for departure and returning from your deployment. This allowance is not paid to cover costs arising from the performance of your foreign service. It is paid to cover costs arising prior to and after the foreign service. Therefore, this allowance is not considered to be derived from your foreign service.

Accordingly, the transfer allowance is not exempt from income tax in Australia under subsection 23AG(1) of the ITAA 1936 as it is not derived from your foreign service.

Salary and overseas allowances

As you receive a salary from your employment in Country A, this salary is considered to be derived from your foreign service.

The overseas allowances are designed to cover various costs and hardship of the foreign service. As they are paid to compensate for costs arising from the foreign service and for the hardship attributable to the foreign service, they are considered to be derived from your foreign service.

Therefore, your salary and overseas allowances are foreign earnings from foreign service for the purposes of subsection 23AG(1) of the ITAA 1936.

The exemption does not apply if the income is exempt from tax in the foreign country only because of any of the reasons listed in subsection 23AG(2) of the ITAA 1936. 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 tax treaties.

Section 4 of the International Tax Agreements Act 1953 (Agreements Act) incorporates that Act with the 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).

The Country A tax treaty operates to avoid the double taxation of income received by residents of Australia and Country A.

A specific Article of the Country A Agreement provides that remuneration paid by Australia to any individual in respect of services rendered in the discharge of governmental functions shall be taxable only in Australia. However, such remuneration will be taxable only in Country A if the services are rendered in Country A and the individual is a citizen of Country A, or did not become a resident of Country A solely for the purpose of performing the services.

The employment income you receive in relation to your deployment to Country A is taxable only in Australia under a specific Article of the Country A Agreement as you are an Australian resident and the income is paid by Australia in respect of services rendered in the discharge of governmental functions.

As the employment income you receive while posted to Country A is exempt from tax in Country A because of the operation of a tax treaty, paragraph 23AG(2)(b) of the ITAA 1936 would normally apply and the income would therefore not be exempt from tax in Australia under subsection 23AG(1) of the ITAA 1936.

However, the income you earn while on posting is also exempt from tax in Country A because of the terms of the Treaty on Development Co-operation between the Government of Australia and the Government of Country A.

The exemption provided by the treaty does not fall under any of the other exemption categories under subsection 23AG(2) of the ITAA 1936.

You satisfy the conditions for exemption under section 23AG of the ITAA 1936.

Accordingly, the salary and overseas allowances you receive from employment in Country A are exempt from income tax in Australia under subsection 23AG(1) of the ITAA 1936.