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This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law.

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Edited version of your private ruling

Authorisation Number: 1012169764074

Ruling

Subject: Residency for tax purposes

Question and answer

Were you a resident of Australia for taxation purposes from the date you arrived in Australia?

Yes.

This ruling applies for the following period:

Year ended 30 June 2011

The scheme commenced on:

1 July 2010

Relevant facts and circumstances

You met your spouse an Australian citizen and resident overseas a number of years ago.

You married recently.

You had a restricted visa.

The periods you were not in Australia due to visa restrictions you stayed with family overseas.

At all times since meeting your Australian spouse you have been financially supported by them.

You did not have your own home outside Australia.

You lived with your de facto spouse in their own home during the days you were in Australia.

You intended to remain in Australia at all times subject to visa approval.

You intended to apply for permanent residency at the earliest date.

At this stage it will be at least x years before you are able to become an Australian citizen due to immigration laws.

Your spouse is not currently and has never been a Commonwealth government employee.

Relevant legislative provisions:

Income Tax Assessment Act 1936 Subsection 6(1).

Income tax Assessment Act 1997 Section 6-5.

Income Tax Assessment Act 1997 Subsection 995-1(1).

Reasons for decision

Subsection 995-1(1) of the Income Tax Assessment Act 1997 (ITAA 1997) defines an Australian resident as a person who is a resident of Australia for the purpose of the Income Tax Assessment Act 1936 (ITAA 1936).

The terms resident and resident of Australia, in regard to an individual, are defined in subsection 6(1) of the ITAA 1936. The definition provides four tests to ascertain whether a taxpayer is a resident of Australia for income tax purposes. These tests are:

The primary test for deciding the residency status of an individual is whether the individual resides in Australia according to the ordinary meaning of the word. However, where an individual does not reside in Australia according to ordinary concepts, they may still be considered to be an Australian resident for tax purposes if they satisfy the conditions of one of the three other tests.

The resides test

The ordinary meaning of the word 'reside', according to the Macquarie Dictionary, 2001, rev. 3rd edition, The Macquarie Library Pty Ltd, NSW, is 'to dwell permanently or for a considerable time; having one's abode for a time', and according to the Compact Edition of the Oxford English Dictionary (1987), is 'to dwell permanently, or for a considerable time, to have one's settled or usual abode, to live in or at a particular place'.

In your case you came to Australia with your de facto spouse.

You intended to live in Australia on a permanent basis with your spouse.

You applied for Australian citizen ship at the earliest date and due to immigration law this will take about x years to obtain.

You were required to return overseas as part of your visa requirements, these returns were not by choice.

You returned to Australia as quickly as possible after the required amount of time expired overseas.

You stayed with family when you returned overseas as you do not have a home overseas of your own.

Your spouse has provided financially for you since you moved to Australia.

You have lived at all times with your spouse in Australia in their home.

You and your spouse married.

You are a resident under this test.

As you are a resident under the resides test it is not necessary to look at the domicile, 183 and superannuation tests.

Your residency status

You were a resident of Australia for taxation purposes from the time you arrived in Australia.

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