Assessability of employment income derived by Australian resident individual working in Japan

Are the salary and wages received by an Australian resident taxpayer from working in Japan assessable under subsection 6-5(2) of the Income Tax Assessment Act 1997 (ITAA 1997)?

No. The salary and wages received by an Australian resident taxpayer from working in Japan are not assessable under subsection 6-5(2) of the ITAA 1997 as they are exempt under subsection 23AG of the Income Tax Assessment Act 1936 (ITAA 1936).

The taxpayer is a resident of Australia for income tax purposes.

The taxpayer is not a resident of Japan for Japanese tax purposes.

The taxpayer worked in Japan for a continuous period of more than 90 days.

The taxpayer's period of employment spanned two Japanese tax years.

In the first Japanese tax year, the taxpayer worked in Japan for a period of less than 183 days.

In the second Japanese tax year, the taxpayer worked in Japan for a period of more than 183 days.

The taxpayer is employed by an Australian company.

The taxpayer's employer paid their salary while they were working in Japan.

The taxpayer's employer is not a resident of Japan.

The taxpayer's employer maintains a permanent establishment in Japan.

The salary and wages paid by the taxpayer's employer is deductible in determining the taxable profits of the employer's permanent establishment in Japan.

The tax laws of Japan provide for the imposition of income tax on employment income and do not generally exempt such income from tax.

The salary and wages received by the taxpayer are not exempt in Japan because of a law (or regulations) corresponding to the International Organizations (Privileges and Immunities) Act 1963 or under an international agreement to which Australia is a party that deals with privileges and immunities of persons connected with international organisations or relating to diplomatic or consular matters.

The salary and wages received by the taxpayer are not exempt in Japan for any other reason.

Subsection 6-5(2) of the 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 23AG of the ITAA 1936 which deals with overseas employment income.

Subsection 23AG(1) of the ITAA 1936 provides that where a resident taxpayer is engaged in foreign service for a continuous period of not less than 91 days, any foreign earnings derived will be exempt from tax in Australia.

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' to mean income consisting of earnings, salary, wages, commission, bonuses or allowances.

Subsection 23AG(2) of the ITAA 1936 provides that the exemption in subsection 23AG(1) of the ITAA 1936 will not apply where the income is exempt from income tax in the foreign country only because of any of the following reasons: (a) a law of the foreign country giving effect to a double tax agreement (b) a double tax agreement (c) provisions of a law of the foreign country under which income covered by any of the following categories is generally exempt from income tax: (i) income derived in the capacity of an employee (ii) income from personal services (iii) similar income (d) the law of the foreign country does not provide for the imposition of income tax on one or more of the categories of income mentioned in paragraph (c) (e) a law of the foreign country corresponding to the International Organizations (Privileges and Immunities) Act 1963 or to the regulations under that Act (f) an international agreement to which Australia is a party and that deals with: (i) diplomatic or consular privileges and immunities (ii) privileges and immunities in relation to persons connected with international organisations (g) a law of the foreign country giving effect to an agreement covered by paragraph (f).

In determining liability to tax to foreign sourced income received by a resident taxpayer, it is necessary to consider not only the income tax laws but also any applicable double tax agreement contained in the International Tax Agreements Act 1953 (the Agreements Act).

Section 4 of the Agreements Act incorporates that Act with the ITAA 1936 and ITAA 1997 so that those Acts are read as one.

Schedule 6 to the Agreements Act contains the double tax agreement between Australia and Japan and the Protocol to that agreement (the Japanese Agreement). The Japanese Agreement operates to avoid the double taxation of income received by Australian and Japanese residents.

Article 11(1) of the Japanese Agreement provides that salary and wages derived by an individual who is a resident of Australia in respect of an employment will be taxable only in Australia unless the employment is exercised in Japan. If the employment is exercised in Japan, the remuneration may be taxed in Japan.

However, Article 11(2) of the Japanese Agreement provides that salary and wages derived by an individual who is a resident of Australia in respect of employment exercised in Japan shall be exempt from tax in Japan if: (a) the recipient is present in Japan for a period or periods not exceeding in the aggregate 183 days in the year of income or the taxable year as the case may be in Japan (b) the remuneration is paid by or on behalf of an employer who is not a resident of Japan, and (c) the remuneration is not deductible in determining taxable profits of a permanent establishment or a fixed base which the employer has in Japan.

In the first Japanese tax year that the taxpayer worked in Japan, the taxpayer was present in Japan for less than 183 days. The taxpayer was paid by their Australian resident employer during their presence in Japan. However, as the taxpayer's employer operates through a permanent establishment in Japan and the remuneration paid to the taxpayer is deductible in determining taxable profits of that permanent establishment, Article 11(2)(c) of the Japanese Agreement is not satisfied and the income derived by the taxpayer during the first Japanese tax year that the taxpayer was present in Japan is not exempt from tax in Japan.

In the second Japanese tax year that the taxpayer worked in Japan, Article 11(2) of the Japanese Agreement does not apply as the taxpayer was present in Japan for more than 183 days. The taxpayer's salary and wages are taxable by Australia and by Japan under Article 11(1) of the Japanese Agreement

Consequently, as the salary and wages derived by the taxpayer from working in Japan are not exempt from tax in Japan, paragraphs 23AG(2)(a) and 23AG(2)(b) of the ITAA 1936 do not apply. As none of the other circumstances in subsection 23AG(2) apply, the salary and wages received by the taxpayer from working in Japan are exempt under subsection 23AG(1) of the ITAA 1936.

Accordingly, the salary and wages received by the resident taxpayer from employment in Japan will not be assessable under subsection 6-5(2) of the ITAA 1997.