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This edited version has been archived due to the length of time since original publication.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: 1051260691048

Date of advice: 2 August 2017

Ruling

Subject: Residence for tax purposes

Question

Are you a resident of Australia for taxation purposes under the Commonwealth Superannuation test?

Answer

No.

This ruling applies for the following period(s)

Year ending 30 June 2018

Year ending 30 June 2019

Year ending 30 June 2020

The scheme commences on

July 2017

Relevant facts and circumstances

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

Your spouse is 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).

Further issues for you to consider

Anti-avoidance rules

Reasons for decision

Section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997) provides that where you are a resident of Australia for taxation purposes, your assessable income includes income gained from all sources, whether in or out of Australia. However, where you are a foreign resident, your assessable income includes only income derived from an Australian source.

The terms resident and resident of Australia, in regard to an individual, are defined in subsection 6(1) of the Income Tax Assessment Act 1936.

The definition offers four tests to ascertain whether each individual taxpayer is a resident of Australia for income tax purposes. These tests are the:

The primary test for deciding the residency status of each individual is whether they reside in Australia according to the ordinary meaning of the word resides. If the primary test is satisfied the remaining three tests do not need to be considered as residency for Australian tax purposes has been established.

You are only requesting that the Commissioner consider the Commonwealth superannuation fund test.

The Commonwealth superannuation fund test

An individual is still considered to be a resident if that person is eligible to contribute to the PSS or the CSS, or that person is the spouse or child under 16 of such a person. To be eligible to contribute to those schemes, you must be or have been a Commonwealth Government employee.

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

Your spouse is not eligible to contribute to the PSS or the CSS Commonwealth super funds.

You are not a resident under the Commonwealth super test.

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