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This edited version has been archived due to the length of time since original publication.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

You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4.

Edited version of private advice

Authorisation Number: 1013030691503

Date of advice: 10 June 2016

Ruling

Subject: residency status

Question 1

Are you a non-resident of Australia for tax purposes for the period 1 July 2015 to 30 June 2016?

Answer

No

Question 2

Are you a non-resident of Australia for tax purposes from the date you departed Australia?

Answer

Yes

This ruling applies for the following period:

1 July 2015 to 30 June 2016

The scheme commences on:

1 December 2015

Relevant facts and circumstances

Your country of origin is country A.

You are a citizen of both country A and Australia.

You are married with children.

You departed Australia for country B to commence full time work.

Your spouse and children departed Australia some time later to unite and live with you permanently in country B.

You returned to country A earlier this year with your family to attend a wedding and visit with a new born family member.

You have informed the Australian Electoral Commission that you have departed Australia permanently.

You have informed Medicare that you have departed Australia permanently.

You have informed your Australian private health insurance that you have departed Australia permanently.

You are leasing a property in country B and intend to purchase a property there once your property in Australia is sold or a suitable property in country B is on the market.

You owned your family home in Australia which was placed on the market for sale since your departure.

You owned two cars in Australia. One was sold and the other has been shipped to country B.

All your household and personal effects have been shipped to country B.

You have informed your bank you have departed Australia permanently and they will be withholding 10% non-resident withholding tax.

You have opened bank accounts in country B.

Your spouse is actively seeking employment.

You have enrolled your children in school. They have joined a local club. Your family attend the Catholic Church and other social events every week.

You have not maintained any professional, social or sporting connections in Australia.

You and your spouse have joined a gym in country B and are regular attendees.

You are not a member of the Public Sector Superannuation Scheme or Commonwealth Superannuation Scheme.

Relevant legislative provisions

Income Tax Assessment Act 1997 subsection 995-1(1)

Income Tax Assessment Act 1936 subsection 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 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.

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