Income tax: assessable income: Australian Federal Police SES employees deployed to the Solomon Islands as members of the Participating Police Force under the Regional Assistance Mission to the Solomon Islands

This Ruling sets out the Commissioner's opinion on the way in which the relevant taxation provision(s) identified below apply to the defined class of entities, who take part in the scheme to which this Ruling relates.

The relevant taxation provisions dealt with in this Ruling are section 23AG of the Income Tax Assessment Act 1936 (ITAA 1936) and section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997). Changes to section 23AG of the ITAA 1936 came into effect on 19 December 2005. The Commissioner's interpretation on the treatment of absences in respect of section 23AG of the ITAA 1936 prior to the latest amendments is contained in Taxation Ruling TR 96/15.

The class of entities to which this Ruling applies are: • Senior Executive Service (SES) officers of the Australian Federal Police (AFP); • persons seconded to the AFP under section 69D of the Australian Federal Police Act 1979 (AFP Act 1979) for the period of deployment; and • persons appointed to the AFP as special members of the AFP under section 40E of the AFP Act 1979 for the period of their deployment, deployed to the Solomon Islands as part of the Participating Police Force (PPF) under the Regional Assistance Mission to the Solomon Islands (RAMSI). The deployment is under the Agreement between Solomon Islands, Australia, New Zealand, Fiji, Papua New Guinea, Samoa and Tonga concerning the operations and status of the police and armed forces and other personnel deployed to Solomon Islands to assist in the restoration of law and order and security.

Those deployed as described in paragraph 3 of this Ruling to whom this Ruling applies will be collectively referred to in this Ruling as AFP employees.

AFP employees remain Australian residents throughout the period of deployment.

AFP employees include employees who while on deployment to the Solomon Islands return to Australia for a period during which they utilise leave that has wholly accrued from their service in the Solomon Islands.

The class of entities does not include AFP employees who while on deployment to the Solomon Islands return to Australia for a period during which they utilise leave that has wholly or partly accrued from service in Australia.

The Commissioner makes this Ruling based on the precise scheme identified in this Ruling.

The class of entities defined in this Ruling may rely on its contents provided the scheme actually carried out is carried out in accordance with the scheme described in paragraphs 13 to 27 of this Ruling.

If the scheme actually carried out is materially different from the scheme that is described in this Ruling, then: • this Ruling has no binding effect on the Commissioner because the scheme entered into is not the scheme on which the Commissioner has ruled; and • this Ruling may be withdrawn or modified.

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This Ruling applies from 1 July 2005. However, the Ruling does not apply to taxpayers to the extent that it conflicts with the terms of a settlement of a dispute agreed to before the date of issue of the Ruling (see paragraphs 21 and 22 of Taxation Ruling TR 92/20). Furthermore, the Ruling only applies to the extent that: • it is not later withdrawn by notice in the Gazette ; or • the relevant taxation provisions are not amended.

The scheme that is the subject of the Ruling is described below. This description is based on the following documents which are attached to the file record maintained by the Australian Taxation Office for this Ruling. These documents, or relevant parts of them, as the case may be, form part of and are to be read with this description. The relevant documents or parts of documents incorporated into this description of the scheme are: • Application for Class Ruling (dated 9 August 2005) received on 11 August 2005; • a pro-forma Australian Workplace Agreement (AWA); • information provided by telephone by the applicant on 23 September 2005; and • copy of the Agreement between the Solomon Islands, Australia, New Zealand, Fiji, Papua New Guinea, Samoa and Tonga concerning the operations and status of the police and armed forces and other personnel deployed to Solomon Islands to assist in the restoration of law and order and security (dated 24 July 2003) (the Government Treaty).

AFP employees will be deployed to the Solomon Islands as members of the PPF under the Treaty as part of the Regional Assistance Mission.

The terms and conditions in each AFP employee's AWA will be the same, the only difference being that the amount of remuneration and benefits may vary from one employee to another.

The period of deployment is for a minimum period of 12 months.

It is anticipated that AFP employees will return to Australia to reside on a permanent basis on completion of their deployment after which they will continue to remain employees of the AFP in Australia.

AFP employees will be members of either the Commonwealth Superannuation Scheme or the Public Sector Superannuation scheme.

The remuneration for AFP employees takes the form of an annual salary entitlement, a potential performance bonus and the payment of various allowances. Salary and allowances will continue to be paid into the employee's nominated account on a fortnightly basis.

AFP employees are entitled to the following allowances: • composite allowance; • daily incidental allowance; and • mission allowance.

Allowances will be paid while an AFP employee is on leave accrued during the deployment period.

Performance bonus payments are made to AFP employees at the discretion of the Commissioner of Police of the AFP. The amount of any performance bonus payment may take the form of: • annual bonus payments at the end of a performance appraisal cycle; • bonus payments during the cycle in recognition of outstanding contribution to particular work outcomes; or • movement to a higher salary rate.

The AFP employees are also entitled to certain compensation payments either on resignation or retirement under sections 30, 31 and 32 of the AFP Act, or on termination of engagement under sections 22 or 28 of the AFP Act prior to the expiry of the term of engagement.

AFP employees will accrue 20 days of recreation leave per year. In addition, AFP employees will receive 10 days additional recreation leave per annum or pro-rata for part year of deployment. All recreation leave accrued during the term of deployment will be utilised before the cessation of the term of deployment. Miscellaneous leave may also be granted for special circumstances (for example, death of a close family member).

Leave will be approved subject to operational requirements and with approval from national management.

It is expected that only recreation leave accrued while on deployment will be taken by AFP employees. If an employee chooses to return to Australia on recreation leave they would not be expected or required to perform any work related duties in Australia.

Article 16.6 of the Government Treaty grants an exemption to members of the Visiting Contingent which includes AFP employees from taxation by the Government of the Solomon Islands on their pay and other emoluments.

The salary, performance bonus and allowances referred to in paragraphs 19, 20 and 22 of this Ruling, derived by AFP employees described in paragraphs 3 to 6 of this Ruling deployed to the Solomon Islands are exempt from tax under section 23AG of the ITAA 1936 where: • the employee has been engaged, or is taken to have been engaged, in service in the Solomon Islands for a continuous period of not less than 91 days; and • the salary, performance bonus and allowances are derived from that foreign service, including payments for recreation leave that has wholly accrued from the period of service in the Solomon Islands.

In the 2005-2006 income year, Daniel, an AFP employee derives the following types of income: • Australian employment income of $60,300; • allowable deductions against Australian income of $300; • foreign exempt employment income of $30,100; and • expenses directly related to foreign exempt employment income of $100. Assume that Daniel has appropriate private patient hospital cover for Medicare levy surcharge purposes. The total amount of Australian tax payable will be calculated with reference to the following formula: (Notional gross tax/Notional gross taxable income) x Other taxable income Step 1 Daniel's notional gross taxable income is $90,000 ([$60,300 - $300] + [$30,100 - $100]). Step 2 The notional gross tax is $27,450 (the normal Australian income tax and Medicare levy payable on a taxable income of $90,000). Step 3 The other taxable income is $60,000 (Australian employment income). Step 4 The Australian tax payable (including Medicare levy) on Daniel's Australian income is: ($27,450/$90,000) x $60,000 = $18,300

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 exempt foreign employment income.

Section 23AG of the ITAA 1936 provides an exemption from Australian tax on the foreign earnings derived by an Australian resident who has been engaged in foreign service continuously for 91 days or more.

Subsection 23AG(1) of the ITAA 1936 states:

The basic tests for the exemption of foreign employment income in subsection 23AG(1) of the ITAA 1936 are: • the taxpayer must be a 'resident of Australia'; • the taxpayer must be engaged in 'foreign service'; • the foreign service must be for a continuous period of not less than 91 days; and • the taxpayer must derive 'foreign earnings' from that 'foreign service'. However, certain foreign earnings that meet these tests may not be exempt from tax (see paragraphs 69 to 74 of this Ruling).

The determination of a person's residency status depends on that person's circumstances and is a determination made in relation to each year of income. For further information see Taxation Ruling IT 2650. This Ruling only applies to the class of entities described in paragraphs 3 to 6 of this Ruling who remain Australian residents for tax purposes during their deployment to the Solomon Islands.

This Ruling is based on the assumption that AFP employees deployed to the Solomon Islands will remain Australian residents for tax purposes throughout the period of their deployment.

'Foreign service' is defined as 'service in a foreign country as the holder of an office or in the capacity of an employee' (subsection 23AG(7) of the ITAA 1936).

The term 'employee' is defined within subsection 23AG(7) of the ITAA 1936 to include 'a person employed by a government or an authority of a government or by an international organisation'.

AFP employees referred to in paragraphs 3 to 6 of this Ruling are considered to meet the above definition of an 'employee'.

Deployment of AFP employees to the Solomon Islands constitutes 'foreign service' as each employee is undertaking 'service in a foreign country as a holder of an office or in the capacity of an employee'.

Each AFP employee based in the Solomon Islands is expected to serve continuously in the Solomon Islands for a period of at least 91 days. These periods of 'foreign service', if met, satisfy the test that Australian residents working overseas must be engaged in foreign service 'for a continuous period of not less than 91 days'.

Should an AFP employee depart the Solomon Islands prior to the completion of 91 days of continuous service, that employee will normally be ineligible for the exemption.

However, in certain instances, an employee who departs the Solomon Islands prior to serving the necessary number of days, may still qualify for exemption if they return to continue their posting at a later date (refer paragraphs 9 to 16 of Taxation Ruling TR 96/15).

Subsection 23AG(6) of the ITAA 1936 treats certain temporary absences from foreign service as forming part of the period of foreign service. The Commissioner's view on the application of that subsection is reflected in paragraphs 9 to 11 of TR 96/15.

Absences which form part of the period of foreign service include absences taken in accordance with the terms and conditions of employment because of accident or illness or recreation leave, other than: (a) leave wholly or partly attributable to a period of service or employment other than the foreign service; (b) long service leave, furlough, extended leave or leave of a similar kind (however described); or (c) leave without pay or on reduced pay.

A period in which an employee is absent on extended leave (see paragraph 47(b) of this Ruling) is not a period of 'foreign service' for the purposes of subsection 23AG(1) of the ITAA 1936. Additional recreation leave entitlements granted to employees posted overseas will not be considered to constitute extended leave where the additional leave is reasonable.

The deployed AFP employees are granted 10 days additional recreation leave per annum or pro-rata for part year of deployment.

Given the nature of the overseas deployment, it is considered that the additional recreation leave granted to AFP employees deployed the Solomon Islands is reasonable. Therefore, the period of additional recreation leave will form part of a continuous period of 'foreign service' for the purposes of subsection 23AG(1) of the ITAA 1936.

Miscellaneous leave granted to the AFP employee because of the accident, illness or death of another person will also form part of the employee's period of continuous foreign service where the leave is for a short period.

In certain limited circumstances, breaks other than those specified in paragraph 47 of this Ruling are also taken to form part of a period of foreign service. Such breaks include weekends, public holidays, rostered days off, and days off in lieu of such, where such breaks are authorised by the terms and conditions of the deployment. However, where such breaks are used to return to Australia they must not be excessive. Where the break is excessive the period of foreign service will still not be broken if continuity of the foreign service period can be maintained by application of the rules outlined in paragraph 54 of this Ruling.

Breaks taken to visit or return to Australia are considered excessive when the total of such breaks are more than one-sixth of the period of scheduled foreign service or, if the period of foreign service is ongoing, more than one-sixth of the income year. This one-sixth administrative test is different to the 1/6 legislative rule covered in paragraphs 55 to 57 of this Ruling.

In determining whether the continuity of foreign service can be maintained, the AFP employee should consider the application of: • the former subsections 23AG(6A) to 23AG(6E) of the ITAA 1936 if the break occurs prior to 19 December 2005. The Commissioner's view on the application of those subsections is reflected in paragraphs 14 to 16 and the accompanying examples in paragraphs 30 and 31 of TR 96/15, and the examples in paragraphs 31A and 31B of the addendum to TR 96/15; or • subsection 23AG(6A) of the ITAA 1936 if the break occurs on or after 19 December 2005. Paragraphs 55 to 57 of this Ruling provide an explanation of this tax provision. Alternatively, the AFP employee could seek professional advice from their taxation adviser or the Australian Taxation Office.

The 1/6 legislative rule allows two or more continuous periods of foreign service to be joined as a total period of foreign service, unless, at any time, the total period of absence (in days) from foreign service between the continuous periods of foreign service exceeds 1/6 of the number of days of the total period of foreign service.

If the period of absence exceeds 1/6 of the total period of foreign service at any time, continuity of foreign service is broken. The AFP employee will begin a new period of foreign service when he or she next engages in foreign service and must determine whether that period of foreign service lasts for at least 91 continuous days (subsections 23AG(6A) of the ITAA 1936).

The 1/6 legislative rule should not be confused with the one-sixth administrative test outlined at paragraphs 52 and 53 of this Ruling. The 1/6 legislative rule in subsection 23AG(6A) permits two or more periods of foreign service to constitute a continuous period of foreign service where continuity would be otherwise broken by absence. Absences between the periods of foreign service under the 1/6 legislative rule do not form part of the continuous period of foreign service. In contrast, the one-sixth rule is an administrative test which permits what would otherwise be a break in the foreign service to be included in a continuous period of foreign service.

The definition of 'foreign earnings' is contained in subsection 23AG(7) of the ITAA 1936, which provides that: 'foreign earnings' means income consisting of earnings, salary, wages, commission, bonuses or allowances, or of amounts included in a person's assessable income under Division 13A, but does not include any payment, consideration or amount that: (a) is included in assessable income under Subdivision AA of Division 2; or (b) is excluded from the definition of 'eligible termination payment' in subsection 27A(1) because of paragraph (ja), (k), (ka), (m), (ma), (n) or (p) of that definition.

Subject to paragraph 60 the exclusions to the definition of 'foreign earnings' in paragraph 58 are not, however, relevant to this scheme as they relate to pensions, annuities, eligible termination payments and other similar amounts.

AFP employees who are entitled to the termination payments should seek professional advice from their taxation adviser or the Australian Taxation Office about the application of section 23AG of the ITAA 1936 to their circumstances.

The remuneration of deployed AFP employees takes the form of an annual salary entitlement, a potential performance bonus and the payment of various allowances.

These salary, bonuses and allowances which are described in paragraphs 19, 20 and 22 of this Ruling come within the definition of 'foreign earnings' in subsection 23AG(7) of the ITAA 1936.

Whilst the salary of AFP employees may be paid into financial institutions in Australia, those 'earnings' are still considered 'foreign earnings'.

To qualify for the exemption the 'foreign earnings' must be derived from the 'foreign service'. That does not mean that the foreign earnings need to be derived at the time of engaging in foreign service. The important test is that the foreign earnings, when derived, need to be derived as a result of the undertaking of that foreign service.

In the case of allowances paid after the taxpayer returns to Australia that relate to the period of foreign service, such allowances are treated as foreign earnings derived from that foreign service. Also, any advances against salary or allowances paid to the taxpayer prior to the undertaking of foreign service arising from the undertaking of that foreign service would be treated as foreign earnings from foreign service.

The receipt of the following allowances: • composite allowance; • daily incidental allowance; and • mission allowance, are considered to be foreign earnings from the foreign service as they relate to engaging in foreign service in the Solomon Islands.

The salary that is paid when taking recreational leave that accrued during the period of foreign service is also considered to be foreign earnings from that service.

In the case of performance bonuses paid after the person returns to Australia that relate to the period of foreign service, such bonuses are treated as foreign earnings derived from that foreign service. However, where the bonus relates to both a period of foreign service and a period of employment in Australia, the AFP employees are required to calculate their performance bonuses considered to be foreign earnings derived from that foreign service.

Subsection 23AG(2) of the ITAA 1936 provides that no exemption is available under subsection 23AG(1) of the ITAA 1936 in circumstances where an amount of foreign earnings derived in a foreign country is exempt from tax in the foreign country solely because of: • a double tax agreement or a law of a country that gives effect to such an agreement (paragraphs 23AG(2)(a) and (b)); • a law of that foreign country which generally exempts from, or does not provide for, the imposition of income tax on income derived in the capacity of an employee, income from personal services or any other similar income (paragraphs 23AG(2)(c) and (d)); and • a law or international agreement dealing with privileges and immunities of diplomats or consuls or of persons connected with international organisations (paragraphs 23AG(2)(e), (f) and (g)).

There is currently no tax treaty between Australia and the Solomon islands.

The privileges and immunities of persons connected with an international organisation do not apply to AFP employees working in the Solomon Islands.

The foreign earnings derived by AFP employees in the Solomon Islands are not exempt, under the general provision, from income tax in the Solomon Islands.

Article 16.6 of the Government Treaty grants to members of the Visiting Contingent which includes AFP employees an exemption from taxation by the Government of the Solomon Islands on their pay and other emoluments.

As a result, the foreign earnings of the deployed AFP employees are exempt from tax in the Solomon Islands for a reason other than those listed in subsection 23AG(2) of the ITAA 1936. Therefore, subsection 23AG(2) will not operate to deny the exemption under subsection 23AG(1) of the ITAA 1936.

The 'foreign earnings' of AFP employees that are exempt from Australian tax under section 23AG of the ITAA 1936 are nevertheless taken into account in calculating the Australian tax on other assessable income derived by the employee (subsection 23AG(3) of the ITAA 1936).

Tax on other assessable income will be calculated by applying to the non-exempt income (for example, Australian salary, investment income), the notional average rate of tax payable on the sum of exempt income and non-exempt income.

In calculating these amounts, any deductions that relate to the exempt income are allowed as if the exempt income was assessable income. That is, expenses which relate directly to earning income in the Solomon Islands are deductible from exempt income.

The following is a detailed contents list for this Ruling: Paragraph What this Class Ruling is about 1 Relevant taxation provision(s) 2 Class of entities 3 Qualifications 8 Date of effect 12 Scheme 13 Ruling 28 Example 29 Appendix 1 - Explanation 30 Resident of Australia 37 Engaged in foreign service 39 For a continuous period of not less than 91 days 43 Temporary absences forming part of a period of foreign service 46 Temporary absences not breaking the period of foreign service: the one-sixth administrative test 52 Temporary absences not breaking the period of foreign service: the legislative rules 54 Continuity of the period of foreign service: 1/6 legislative rule 55 Foreign earnings 58 From that foreign service 64 Certain foreign earnings not exempt 69 Exemption with progression 75 Appendix 2 - Detailed contents list 78