ATO Interpretative Decision

ATO ID 2002/898 (Withdrawn)

Income Tax

• This ATO Interpretative Decision is withdrawn from the database because it contains references to the tax treaty between Australia and the United Kingdom that was replaced with a new tax treaty which is effective from 17 December 2003. Despite its withdrawal from the database, this ATO Interpretative Decision continues to be a precedential view in respect of decisions for income years up to, and including, the 2003-2004 income year.
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Issue

Is income derived by a taxpayer who is on a work exchange program with an organisation in the United Kingdom, exempt from Australian income tax under section 23AG of the Income Tax Assessment Act 1936 (ITAA 1936)?

Decision

Yes, the taxpayer's overseas employment income is exempt foreign income under section 23AG of the ITAA 1936.

Facts

The taxpayer is an Australian resident for tax purposes.

The taxpayer was involved in a work exchange program with an organisation in the United Kingdom. The exchange allowed the taxpayer to undertake similar employment duties overseas to those in their current employment in Australia. The exchange was encouraged by the taxpayer's employer, who organised the necessary licences.

The taxpayer was present in the United Kingdom for more than 183 days during the United Kingdom's year of assessment (6 April to 5 April for individuals).

Wages were paid by the taxpayer's Australian employer and tax was withheld.

Reasons for Decision

Subsection 23AG(1) of the ITAA 1936 states that 'where a resident, being a natural person, has been engaged in foreign service for a continuous period of not less than 91 days, any foreign earnings derived by the person from that foreign service is exempt from tax'. This section is subject to the proviso contained in subsection 23AG(2) of the ITAA 1936, which removes the exemption for income that is treated as exempt income in the foreign country in which it is earned.

Subsection 23AG(7) of the ITAA 1936 defines 'foreign service' as service in a foreign country as the holder of an office or in the capacity of an employee, and 'foreign earnings' include salary, wages, commission, bonuses or allowances.

Paragraph (1) of Article 12 of Schedule 1 of the International Tax Agreements Act 1953 provides that salary and wages derived by an Australian resident from employment exercised in the United Kingdom may be taxed in the United Kingdom.

However, paragraph (2) of Article 12 of Schedule 1 provides that:

•

if the taxpayer is present in the United Kingdom for an aggregated period of 183 days or less during the United Kingdom year of income, and

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the salary and wages are paid by an employer who is not a resident of the United Kingdom and which are not deductible to the employer in determining the taxable profits of a permanent establishment or fixed base in the United Kingdom

the income derived will only be taxable in Australia.

The taxpayer travelled to the United Kingdom as part of a work exchange program and was employed in that country for more than 183 days of the United Kingdom's year of income and therefore the income may be taxed in the United Kingdom.

As the period of employment was greater than 91 days, the taxpayer's wages are exempt from tax in Australia under subsection 23AG(1) of the ITAA 1936 but is subject to tax in the United Kingdom.

Note: if a payment is exempt income, an employer is not required to withhold an amount of tax from salary and wages (subsection 12-1(1) of Schedule 1 of the Taxation Administration Act 1953).

Legislative References:
Income Tax Assessment Act 1936
   section 23AG
   subsection 23AG(1)
   subsection 23AG(2)

Related ATO Interpretative Decisions
ATO ID 2001/329
ATO ID 2001/330
ATO ID 2001/331

Keywords
Double tax agreements
Foreign income
Foreign salary and wages
Exempt income
United Kingdom

Business Line:  Small Business/Individual Taxpayers

Date of publication:  11 September 2002

ISSN: 1445-2782