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This edited version has been archived due to the length of time since original publication.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: 1051228073724

Date of advice: 22 May 2107

Ruling

Subject: Residence

Question and answer:

Are you a resident of Australia for income tax purposes?

No.

This ruling applies for the following period:

Year ending 30 June 2017

Year ending 30 June 2018

Year ending 30 June 2019

Year ending 30 June 2020

The scheme commenced on:

1 January 2017

Relevant facts and circumstances:

You were born in Australia.

You are a citizen of Australia.

You relocated permanently to Country Y in the 201X income year.

You are currently employed in Country Y.

You have a non-immigrant visa to enter Country Y.

The visa is for two years and can be extended.

The visa allows you to stay in Country Y on the condition you are employed in Country Y.

You applied for permanent residency in Country Y in the 201X income year.

You and your former spouse are divorced.

You and your former spouse have children.

You and your former spouse have equal care of the children 50-50.

Due to your work commitments you only have the children at this stage for 35% of the time.

You will stay in fully furnished apartments when you are in Australia caring for your children. These apartments are leased by your employer and are for all employees.

You will stay in hotels if the apartments are not available when you are in Australia.

You rent a fully furnished unit in Country Y.

You have X rental properties in Australia which are currently in both you and your former spouse's name. These will be put solely into your name in the near future.

You have a self-managed super fund which is being managed by a resident trustee.

You will not be in Australia for more than 183 days in any financial year.

You have been in Australia for XX days in the 201X income year and this will not increase much more for the remainder of the year if at all.

You lodge tax returns in Country Y.

You are not eligible to contribute to the PSS or the CSS super funds.

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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