ATO Interpretative Decision
ATO ID 2001/340
Income Tax
Dependent Spouse Tax Offset - prospective spouse residing overseasFOI status: may be released
This version is no longer current. Please follow this link to view the current version. |
-
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you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed.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 taxpayer entitled to a dependent spouse tax offset under section 159J of the Income Tax Assessment Act 1936 (ITAA 1936), with respect to a prospective spouse who is currently residing overseas?
Decision
No, a dependent spouse tax offset cannot be claimed by the taxpayer, as the taxpayer's prospective spouse is not considered a "spouse" within the definition of subsection 6(1) of the ITAA 1936.
Facts
The taxpayer arrived in Australia a number or years ago and is an Australian resident.
The taxpayer has sponsored an application to the Department of Immigration and Multicultural Affairs for the migration of a 'prospective' spouse currently residing overseas.
The taxpayer and their prospective spouse met prior to the taxpayer arriving in Australia. They have never lived together.
The taxpayer has provided financial and moral support to their prospective spouse.
The taxpayer plans to marry as soon as their prospective spouse is able to migrate to Australia.
Reasons for Decision
Subsection 159J(1) of the ITAA 1936 allows a dependent spouse tax offset where a taxpayer contributes to the maintenance of a dependent, and that dependent is a resident.
Subsection 159J(2) provides that a dependent includes a taxpayer's spouse.
The term 'spouse' is defined in subsection 6(1) of the ITAA 1936 and
' ... includes another person who, although not legally married to the person, lives with the person on a bona fide domestic basis as the husband or wife of the person'
Notwithstanding the fact that the taxpayer is providing moral and financial support, there is no evidence that the taxpayer is currently living or has ever lived with their prospective spouse on a genuine domestic basis.
The prospective spouse does not fall within the definition of 'spouse' under subsection 6(1) of the ITAA 1936. Therefore the taxpayer does not have a 'dependent' for the purposes of subsection 159J(2) of the ITAA 1936.
Consequently, the taxpayer is not entitled to a dependent spouse tax offset under subsection 159J(1) of the ITAA 1936.
Date of decision: 21/8/01
Legislative References:
Income Tax Assessment Act 1936
subsection 6(1)
section 159J
subsection 159J(1)
subsection 159J(2)
Keywords
Spouse rebates
Dependent rebate
Dependent spouse
ISSN: 1445-2782
| Date: | Version: | |
| You are here | 21 August 2001 | Original statement |
| 25 July 2008 | Archived |