ATO Interpretative Decision
ATO ID 2002/179
Income Tax
Dependant spouse tax offset - taxpayer not resident for family tax benefit purposesFOI status: may be released
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This document incorporates revisions made since original publication. View its history and amending notices, if applicable.
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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.
Issue
Is a dependant spouse tax offset allowable under section 159J of the Income Tax Assessment Act 1936 (ITAA 1936) for a taxpayer who is not eligible for family tax benefit under the A New Tax System (Family Assistance) Act 1999 (ANTS (FA) Act 1999) due to residency requirements?
Decision
Yes. A dependant spouse tax offset is allowable under section 159J of the ITAA 1936 for a taxpayer who is not eligible for family tax benefit under the ANTS (FA) Act 1999 due to residency requirements.
Facts
The taxpayer and the taxpayer's dependant spouse are residents of Australia for taxation purposes.
The taxpayer and the taxpayer's dependant spouse are not entitled to family tax benefits as they are not residents of Australia for social security purposes.
The taxpayer's dependant spouse has no separate net income.
Reasons for Decision
Section 159H of the ITAA 1936 provides that only resident taxpayers are entitled to concessional tax offsets.
Section 159J of the ITAA 1936 allows a tax offset where a taxpayer contributes to the maintenance of a dependant who is a resident. Subsection 159J(2) of the ITAA 1936 specifies that a dependant includes a taxpayer's spouse.
The definition of resident for the purposes of section 159H and 159J of the ITAA 1936 is contained in subsection 6(1) of the ITAA 1936.
The taxpayer and the taxpayer's spouse are residents in accordance with subsection 6(1) of the ITAA 1936 and therefore satisfy the residency requirements for a dependant spouse tax offset.
Subsection 159J(1AA) of the ITAA 1936 excludes taxpayers from receiving a tax offset for a dependant spouse if the taxpayer, or the taxpayer's spouse was eligible for family tax benefit at the Part B rate within the meaning of the ANTS (FA) Act 1999.
Section 22 of the ANTS (FA) Act 1999 provides that an individual must be an Australian resident in order to be eligible for the family tax benefit. Section 3 of the ANTS (FA) Act 1999 contains the definition of 'Australian resident' which provides that it has the same meaning as in the Social Security Act (SSA 1991).
Neither the taxpayer nor the taxpayer's spouse are residents in accordance with section 7 of the SSA 1991 and therefore they are not eligible for the family tax benefit at the Part B rate under the ANTS (FA) Act 1999.
Accordingly the taxpayer is eligible for the dependant spouse tax offset under section 159J of the ITAA 1936.
Date of decision: 29 June 2001
Legislative References:
Income Tax Assessment Act 1936
subsection 6(1)
section 159H
section 159J
section 159J(1AA)
section 3
section 22 Social Security Act 1991
section 7
Keywords
Spouse rebate
Family tax assistance
Resident/residency
ISSN: 1445-2782
| Date: | Version: | |
| You are here | 29 June 2001 | Original statement |
| 28 October 2005 | Archived |