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Edited version of your written advice

Authorisation Number: 1012816048101

Ruling

Subject: Residency

Question and answer

Are you a resident of Australia for tax purposes?

No.

This ruling applies for the following period

Year ended 30 June 2015

Year ended 30 June 2016

Year ending 30 June 2017

Year ending 30 June 2018

Year ending 30 June 2019

The scheme commenced on

1 July 200X

Relevant facts

You left Australia for an indefinite period.

You resided in country A, then country B, then country C, and now country D.

You and your spouse prepared your family home to be leased out.

You lease your home out on a 12 month basis.

You and your spouse either sold or gifted many of your personal effects.

Your employer has provided you with a motor vehicle and an apartment in country D that has a lease term of 2 years with options to extend.

The lease is in your employers name and your employer pays for the lease as part of your employment package.

You are entitled to # days recreation leave per annum that you use to return to Australia and visit your adult children.

Your spouse resides with you in country D.

You both have overseas residency status.

You have overseas accounts, pensions/savings plans and an employee stock purchase plan.

You intend to remain overseas for the foreseeable future.

Relevant legislative provisions

Income Tax Assessment Act 1936 Subsection 6(1).

Reasons for decision

The terms 'resident' and 'resident of Australia', in regard to an individual, are described in subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936).

The definition includes four tests to assist in determining whether you are a resident of Australia for income tax purposes. These tests are:

The first two tests are examined in detail in Taxation Ruling IT 2650.

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 resides.

However, where you do not reside in Australia according to ordinary concepts, you may still be considered to be a resident of Australia for tax purposes if you meet the conditions of one of the other three tests.

1. The resides test

The ordinary meaning of the word reside, according to the dictionary definition, is to dwell permanently, or for a considerable time, to have ones settled or usual abode, to live in or at a particular place.

As you and your spouse are staying in country D for at least two years, you are not considered to be residing in Australia under this test for that period.

2. The domicile test

If a person's domicile is Australia they will be an Australian resident unless the Commissioner is satisfied they have a permanent place of abode outside of Australia.

In order to show that a new domicile of choice in a country outside Australia has been adopted, the person must be able prove an intention to make his or her home indefinitely in that country.

The expression 'place of abode' refers to a person's residence, where they live with their family and sleep at night. In essence, a person's place of abode is that person's dwelling place or the physical surroundings in which a person lives.

A permanent place of abode does not have to be 'everlasting' or 'forever'. It does not mean an abode in which a person intends to live for the rest of his or her life. An intention to return to Australia in the foreseeable future to live does not prevent the taxpayer in the meantime setting up a permanent place of abode elsewhere.

Your domicile of origin is Australia.

The Commissioner is satisfied that you have a permanent place of abode outside Australia for the following reasons:

You left Australia for an indefinite period over 5 years ago.

You have leased out your family home.

You have either sold or gifted many of your personal effects in Australia.

You and your spouse now reside in country D.

You intend to remain overseas for the foreseeable future.

You are not a resident under this test

The 183-day test

Where a person is present in Australia for 183 days during the year of income the person will be a resident, unless the Commissioner is satisfied that the person's usual place of abode is outside Australia and the person does not intend to take up residence in Australia.

You have not and will not be in Australia for more than 183 days from 1 July 2014. It is considered that your usual place of abode is outside Australia from this date.

You are not a resident under this test.

The superannuation test

An individual is still considered to be a resident if that person is eligible to contribute to the PSS or the CSS, or that person is the spouse or child under 16 of such a person. To be eligible to contribute to those schemes, you must be or have been a Commonwealth Government employee.

You have never been a Commonwealth Government employee.

You are not a resident under this test.

Your residency status

As you are not a resident under any of the four tests you are not a resident of Australia for taxation purposes.

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