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This edited version has been archived due to the length of time since original publication.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 written advice

Authorisation Number: 1012959008323

Date of advice: 5 February 2016

Ruling

Subject: Residency

Question and answer:

Will you be a resident of Australia for taxation purposes prior to moving to Australia indefinitely?

No.

This ruling applies for the following period:

1 July 20XX to 30 June 20YY.

The scheme commenced on:

1 July 20XX.

Relevant facts and circumstances:

You were born in Country A.

You have not lived in Country A for over a decade.

You have a house, bank accounts and investments in Country A.

Your Country A house is rented out for long term rental.

You are currently living and working in Country B.

Your employer pays your rent in Country B.

You have a car in Country B.

You obtained a Skilled Migration Visa for Australia. The visa is for a duration, of five years of which, you must spend two consecutive years in Australia.

Your family will move to Australia.

You will remain in Country B.

You will move to Australia in the near future to satisfy the two years permanent residence in Australia required by your visa.

Prior to moving to Australia you will undertake short visits to Australia to see your family.

You will not be in Australia for more than a total of 183 days during the relevant Australian financial years.

Relevant legislative provisions:

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

Income Tax Assessment Act 1936 Section 6(1).

Reasons for decision

Section 995-1 of the Income tax Assessment Act 1997 (ITAA 1997) defines an Australian resident for tax purposes as a person who is a resident of Australia for the purposes 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. The tests are:

If any one of these tests is met, an individual will be a resident of Australia for taxation purposes.

Based on the facts you have provided, we can conclude you will not satisfy any of the tests of residency prior to moving to Australia indefinitely and you will not be a resident of Australia for taxation purposes prior to that time.

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