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Edited version of your private ruling
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Ruling
Subject: Foreign Income
Question
Is the foreign income you derive from providing service on an approved project in the foreign country exempt from tax in Australia under section 23AF of the Income Tax Assessment Act 1936 (ITAA 1936)?
Answer
Yes.
This ruling applies for the following period:
Year ending 30 June 2012
The scheme commences on:
1 July 2011
Relevant facts
You are an Australian resident for tax purposes.
You are a contractor and you have been contracted by the company to provide security operations and consultancy services to the Australian Embassy in the foreign country for the Department of Foreign Affairs and Trade (DFAT)
The contract between the company and DFAT is an approved overseas project.
Your contract period is for a period in excess of one year during the period of the overseas project period.
You are contracted on a cyclical arrangement that is based on an eight weeks on followed by four weeks off.
The four weeks off is taken as rest and recuperation (R&R) leave accrued as a result of your foreign service in the foreign country.
You spend your R & R leave in Australia and you do not perform any duties at this time.
You are liable to pay income tax in the foreign country.
There is no tax treaty between Australia and the foreign country.
As you are a contractor, your foreign service does not qualify for exemption under section 23AG of the ITAA 1936.
Relevant legislative provisions
Section 23AF of the Income Tax Assessment Act 1936
Subsection 23AF(3) of the Income Tax Assessment Act 1936
Subsection 23AF(18) of the Income Tax Assessment Act 1936
Section 23AG of the Income Tax Assessment Act 1936
Reasons for decision
Summary
The foreign income you derive from providing service on an approved project in the foreign country is exempt from tax in Australia under section 23AF of the ITAA 1936.
Detailed reasoning
Section 23AF of the ITAA 1936 provides that where an Australian resident has been engaged on a qualifying service on a particular approved project for a continuous period of not less than 91 days, any eligible foreign remuneration derived by the person that is attributable to the qualifying service is exempt from tax.
Qualifying service includes time spent outside Australia working on the project, reasonable travel time between Australia and the project, absences due to accident or illness while engaged on qualifying service, and time spent on leave which accrued during the qualifying service (subsection 23AF(3) of the ITAA 1936).
All income directly attributable to qualifying service by the taxpayer on an approved project (for example, salary, wages, commission, bonuses, allowances, contractual payments and payments for recreation leave entitlements which accrue during the relevant period) is eligible for the exemption (subsection 23AF(18) of the ITAA 1936).
Where the overseas service is performed under a cyclical arrangement, the whole of the work cycle (times on and off) may be regarded as a qualifying service where leave taken in circumstances similar to those described in Taxation Ruling IT 2015.
IT 2015 considers employees who had the following terms of engagement:
o 12-hour days
o 7-day working week
o Engaged in uninterrupted cycles of five weeks on site and five weeks leave
Taking into account time off, over a period of 52 weeks average weekly hours would be in excess of 40 hours per week
During the periods of leave in Australia, the employee is not required to attend the company's offices, but may be required to return to work at any time if required, and
No further entitlement to any additional annual leave.
Your circumstances are considered to be similar to that outlined in IT2015. Your average weekly hours worked would be in excess of 40 hours per week. The rotational time off compensates you for the long period worked. Therefore, the leave that accrues in respect of a period you were engaged on an approved project forms part of your qualifying service.
As you are an Australian resident who provides service on an approved project in the foreign country for a continuous period of not less than 91 days, and your income is liable to income tax in the foreign country, you satisfy the conditions under section 23AF of the ITAA 1936.
Accordingly, the income you derive from the foreign country is exempt from income tax in Australia under section 23AF of the ITAA 1936.
Note:
Approved overseas projects income is taken into account in calculating Australian tax payable on other income derived by the taxpayer. Tax on the non-exempt income is calculated by applying a notional average rate of tax payable on the sum of the exempt and non-exempt income.