ATO Interpretative Decision
ATO ID 2001/152 (Withdrawn)
Income derived from approved overseas projects
||This ATO ID is withdrawn. The ATO view expressed in this ATO ID is still current. Guidance on the view contained in this ATO ID can be found in Exempt foreign employment income (QC 16739).
||This document has changed over time. View its history.
Status of this decision: Decision withdrawn 12 January 2018.
|CAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.|
This ATOID provides you with the following level of protection:
If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.
Is income derived by a taxpayer from working on an approved overseas project for a period of 83 days exempt from tax under section 23AF of the Income Tax Assessment Act 1936 (ITAA 1936) where the period of engagement occurs eight months after the taxpayer was engaged on the same project for a period of service that qualified for the tax exemption?
No, the income derived during the 83 days of service will not be exempt from tax under section 23AF of the ITAA 1936 as it is considered to be a separate period of service, which is not of a sufficient duration to qualify for the tax exemption.
The taxpayer performs personal services on an overseas project in a foreign country for a period of 24 months. The overseas project is an 'approved project' for the purposes of subsection 23AF(11) of the ITAA1936 and the foreign remuneration received by the taxpayer in respect of service performed on the project during this period is exempt from tax under section 23AF of the ITAA 1936.
At the end of the 24 months of service required by the taxpayer's contract, the taxpayer returns to Australia.
Eight months after returning to Australia, the taxpayer returns to work on the approved project to perform review activities for a period of 83 days under a new contract.
Reasons for Decision
Subsection 23AF(1) of the ITAA1936 provides that where a taxpayer has engaged in qualifying service on an approved project for a continuous period of 91 days or more, then any income that is derived by the taxpayer in relation to the qualifying service will be exempt from tax.
The 83 day period, on its own, is obviously of an insufficient duration to qualify for the exemption.
However, periods in which a person is not performing personal services on an approved project may still be treated as part of one continuous period of qualifying service where:
- the absence from the approved project is due to either eligible leave or accident, illness or incapacity (paragraphs 23AF(3)(c) and (d), subsections 23AF(5) and (9) of the ITAA 1936), or;
- the absence is caused by travel between the project site and Australia, and the travelling time is reasonable (paragraph 23AF(3)(b) and subsection 23AF(4) of the ITAA 1936); or
- the continuity of service on the particular project is broken by unforseen circumstances (subsection 23AF(6) of the ITAA 1936).
Similarly, where there is an intervening period or periods spent in Australia between separate periods of qualifying service, and the total of the intervening periods does not exceed one-sixth of the total of the periods of qualifying service on the project (subsection 23AF(8) of the ITAA 1936), then the separate periods of qualifying service shall together be taken to constitute a continuous period of qualifying service.
As the taxpayer's absence from the project during the period from 1 July 2000 to May 2001 was not due to any of the factors listed above at (a), (b) or (c), and it exceeds one-sixth of the total period, the taxpayer would not be entitled to include this period in his period of qualifying service.
|Date of amendment
|24 April 2014
||Updated for clarity.
Date of decision: 24 October 2000
Income Tax Assessment Act 1936
Related Public Rulings (including Determinations)
Related ATO Interpretative Decisions
ATO ID 2001/256
ATO ID 2002/182
Approved overseas projects
Foreign salary & wages
Siebel/TDMS reference number: CRS34573; 1-9DM8VXA
Business line: Small Business/Individual Taxpayers
Date of publication: 1 August 2001