Edited version of your written advice

Authorisation Number: 1012998575123

Date of advice: 15 April 2016

Ruling

Subject: Exempt foreign income

Question and answer

Is the foreign income you derive in respect of an approved overseas project while its approval is in force, exempt from tax pursuant to section 23AF of the Income Tax Assessment Act 1936?

Yes.

This ruling applies for the following period

Year ended 30 June 2018

Year ended 30 June 2017

Year ended 30 June 2016

The scheme commenced on

1 July 2015

Relevant facts

You are a resident of Australia for income tax purposes.

You are employed as a contractor on an approved project providing services to the Australian Embassy in country A.

You commenced your work in country A on #. This is due to expire on #.

You work on a cyclical arrangement of # weeks on and # weeks off rotation.

Your average day consists of a # hour shift and you are on call 24 hours per day.

Your income is taxed in country A.

Relevant legislative provisions

Income Tax Assessment Act 1936 Section 23AF,

Income Tax Assessment Act 1997 Subsection 6-5(2),

Income Tax Assessment Act 1997 Subsection 6-15(2)

Income Tax Assessment Act 1997 Section 11-15

Reasons for decision

Subsection 6-5(2) of the Income Tax Assessment Act 1997 (ITAA 1997) provides that the assessable income of a resident taxpayer includes ordinary income derived directly or indirectly from all sources, whether in or out of Australia, during the income year.

Salary and wages are ordinary income for the purposes of subsection 6-5(2) of the ITAA 1997.

Subsection 6-15(2) of the ITAA 1997 provides that if an amount is exempt income then it is not assessable income. Section 11-15 of the ITAA 1997 lists those provisions dealing with income which may be exempt. Included in this list is section 23AF of the Income Tax Assessment Act 1936 (ITAA 1936) which deals with income derived in respect of overseas approved projects.

Section 23AF of the Income Tax Assessment Act 1936 (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.

However, section 23AF of the ITAA 1936 does not exempt excluded income. Subsection 23AF(17) of the ITAA 1936 provides income is excluded income if the income is exempt under section 23AG of the ITAA 1936 and exempt from tax in the overseas country.

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).

IT 2015 looks at the determination of period of qualifying service for contractors that are employed on a cyclical basis. The determination states that leave that accrues in respect of a period, during which employees are engaged on qualifying service on an approved project, is regarded as qualifying service. In your situation the # weeks off in your cyclical arrangement is considered part of your qualifying service.

As you are an Australian resident who provides service on an approved project in country A for a continuous period of not less than 91 days, and your income is taxed in country A, you satisfy the conditions under section 23AF of the ITAA 1936.

Accordingly, the income you derive from country A is exempt from income tax in Australia under section 23AF of the ITAA 1936.

Note:

Exempt foreign 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.