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This edited version has been archived due to the length of time since original publication.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: 1051240544551

Date of advice: 29 June 2017

Ruling

Subject: Residency

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 2018

Year ending 30 June 2019

Year ending 30 June 2020

Year ending 30 June 2021

Year ending 30 June 2022

Year ending 30 June 2023

The scheme commenced on:

1 January 2018

Relevant facts and circumstances:

You have been living and working in Country Y for many years.

You have a full-time permanent work contract in Country Y.

You have had permanent residency in Country Y since 2005.

You are a co-owner of three businesses in Country Y.

You lease and permanently reside in a property in Country Y.

All your personal items are in Country Y.

You will remain in this property for the near future.

You intend on purchasing a property in Country Y to live in.

You own a vehicle in Country Y.

Your spouse and children have been living with you in Country Y.

Your family will return to Australia so your children can attend school in Australia.

You will financially support your spouse and children in Australia.

Your spouse will re-join you on a permanent basis in Country Y when your children have completed their schooling.

Your spouse and children are permanent residents of Country Y.

You will return to Australia to visit your family.

These trips back to visit your family will not exceed 183 days in any income year.

Your spouse and children will visit you in Country Y.

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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