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This edited version has been archived due to the length of time since original publication.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: 1012965363102

Date of advice: 15 February 2016

Ruling

Subject: Residency and leaving Australia

Questions and answers:

Are you a resident of Australia for income tax purposes?

No.

This ruling applies for the following periods:

Year ended 30 June 20XX

Year ended 30 June 20XX

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances:

You are a citizen of Australia.

You elected to be a foreign resident for the relevant tax years.

Your spouse accepted a position in Country A.

You accompanied your spouse to Country A.

The position was a one year position, but your spouse understood and expected that they would be able to extend the contract pursuant to standard practice.

Your spouse regarded the relocation to Country A as being for an indefinite term.

You and your family left Australia in 20XX.

Your travel to Country A was facilitated via a one-way air travel ticket.

You took out a 12 month lease on a house.

You took out Health cover.

You obtained employment in Country A.

You had an active involvement with your local community.

Significant monies were transferred from Australia to Country A to fund the costs of establishing yourselves in Country A.

You took all your holidays within Country A.

You regarded your time in Country A as an "immersive life experience". For all intents and purposes you considered yourselves to have established a home and a way of life in Country A.

You rented your house out on an indefinite basis. It was rented in a fully furnished state.

You have maintained a mortgage and bank accounts in Australia.

You returned to Australia permanently in due to your spouse' employment prospects changing significantly. During their tenure in Country A, your spouse' employer introduced a new policy that adversely affected your spouse ability to continuing working in Country A

Absent this change in policy you would have continued to reside in Country A.

You did not contribute to the PSS or CSS Commonwealth schemes.

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 that you will not satisfy any of the tests of residency.

Accordingly you are not a resident of Australia for income tax purposes under section 995-1(1) of the ITAA 1997 and subsection 6(1) of the ITAA 1936 from your date of departure from Australia to the date of your return to Australia.

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