Is it eligible?

Can you claim overseas developers and contractors for R&D tax?

Rarely eligible

Rarely. R&D work done outside Australia can only be claimed if AusIndustry made a positive overseas finding, applied for before the end of the income year the work was done. The work must support an Australian core activity, be impossible to do in Australia for a reason other than cost, and cost less than the related Australian R&D.

Reviewed by George WalchFacts last verified

When it qualifies

Specialist verification work that Australia could not supply

An illustrative Australian company runs a core activity, conducted entirely in Australia, on verifying a safety controller's scheduling logic. One experiment needs a toolchain whose only experienced practitioners it can find are a small team in Europe. A national recruitment campaign and a written statement from an Australian university expert support that. In March, before its 30 June year end, it applies for an overseas finding for that work: $140,000 offshore against $520,000 on the related Australian activities, delivered before the Australian activity concludes.

When it does not

An offshore agency for lower rates

A SaaS company engages an offshore development agency because its rates are a third of local salaries, and the agency builds product features through the year. Nobody applied for a finding. Even if some work were R&D, cost is not one of the allowed reasons the work could not be done in Australia, and with no application before year end the expenditure cannot be claimed.

The evidence that supports it

  • The overseas finding certificate and its number, quoted in the registration.
  • Recruitment advertising and responses, supplier correspondence and expert statements showing the resource was not available in Australia.
  • The application's actual and projected expenditure for the overseas and related Australian activities.
  • Contracts stating the overseas scope of work and how it relates to the Australian core activity.
  • Meeting minutes and progress reports from the overseas team, as the ATO suggests for contract R&D.
  • Records that the overseas work delivered its results before the Australian activity was completed.
  • Invoices with payment dates, and market value support for any associate.

Many Australian software companies have developers overseas, as employees of a subsidiary, through an agency or as freelancers. The R&D Tax Incentive is an Australian program: work done outside Australia is not claimable unless it is covered by a positive overseas finding, a binding decision made by AusIndustry before the claim. Most offshore development never gets one, and much of it could not.

The four conditions

AusIndustry's current guidance sets out four conditions, all of which must be met.

  1. It is R&D. The overseas activity must itself be an eligible core or supporting activity. Routine feature work offshore fails here before anything else is considered.
  2. It serves an Australian core activity. At least one core activity must be conducted solely in Australia, meaning every part of its systematic progression happens here, and must be unable to finish without the overseas work. The overseas activity must deliver its outputs before the Australian activity is completed.
  3. It cannot be done solely in Australia. The allowed reasons are a facility, expertise or equipment not available here; a conflict with the Biosecurity Act 2015 or quarantine law; access to a population of living things; or geographical or geological features. AusIndustry says plainly that "financial reasons are insufficient". You must also show reasonable efforts to find the resource here.
  4. It costs less. Total actual and projected expenditure on the overseas activities must be less than on the related Australian core and supporting activities. This is the rule often called the 50% test: overseas spend must stay below the Australian figure, which means under half of the combined total.

For software, condition 3 is where most cases end. Developers with general skills are available in Australia at a price, and price does not count. Lower rates do not disqualify work that meets an allowed reason for some other, evidenced cause; they simply cannot be that cause.

Timing is absolute

Apply before the end of the income year in which the overseas work is conducted, or planned. AusIndustry cannot accept late applications or grant extensions. Its average processing time is 90 days, an average rather than a promise, so applying early in the year matters. The ATO says a finding starts from the beginning of the income year in which the application is made, and AusIndustry says it lasts for the overseas activities it covers, unless they change materially from the certificate's description.

A finding is not a registration. The activities are still registered each year, with the certificate number, within 10 months after year end. An advance finding is a separate decision about eligibility in general.

Traps peculiar to offshore teams

  • Foreign related entities. The ATO says a finding can only be relied on for activities conducted for your company, not for a connected or affiliated foreign corporation. Taxpayer Alert TA 2023/5 targets R&D conducted overseas that is claimed as the Australian company's own but is in substance conducted for a connected or affiliated foreign entity.
  • Associates. An offshore subsidiary or related contractor can be an associate: amounts count only when paid, and at market value. See associate payments.
  • Location, not invoice. The question is where the work is done, not who sends the invoice.
  • Mixed teams. Australian engineers' work stays claimable in the ordinary way, and keeping their records separate from offshore work makes the expenditure comparison possible.

Software companies weighing offshore work against their Australian activities can start with the overview for SaaS companies.

Our record keeping guide covers the records to keep for offshore work as well as local work.

Frequently asked questions

We missed the deadline for last year. Can we apply late?
No. AusIndustry cannot accept late overseas finding applications or extend the time under any circumstances. The offshore work in that year cannot be claimed. Work in the current year can still be covered if you apply before this income year ends.
Does it matter where the contractor's company is based?
The test is where the R&D activity is conducted. A developer doing the work from overseas needs a finding, whichever entity invoices you. Keep contracts and records that show where the work was done.
Our Australian engineers travel overseas for a test. Is that overseas R&D?
The main test is where the R&D activity is conducted, not who does it or where the cost is paid. If the test itself is run overseas, that activity is overseas R&D and needs a finding, even when your own staff run it. Travel costs follow the activity they serve, so ask your accountant how a particular trip is treated.
Is the overseas finding the same as registering?
No. A positive finding does not register the activities. You still register them for each year, quote the certificate number, and reference the finding when the offset is claimed.

Sources

  1. AusIndustry (business.gov.au): Apply for an overseas finding
  2. ATO: Expenditure you can claim (overseas activities and contract expenditure)
  3. Income Tax Assessment Act 1997 (Division 355), Federal Register of Legislation

The R&D Tax Incentive is a self-assessment program. This page is general information, not tax, legal or financial advice; eligibility depends on your circumstances and you should seek independent advice for them.