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This edited version has been archived due to the length of time since original publication.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: 1051262986246

Date of advice: 3 August 2017

Ruling

Subject: Residence

Question

Are you a resident of Australia for income tax purposes?

Answer:

No.

This ruling applies for the following period:

Year ended 30 June 2015

Year ended 30 June 2016

Year ended 30 June 2017

Year ending 30 June 2018

The scheme commenced on:

17 August 2014

Relevant facts and circumstances:

You are a citizen of Australia and Country Y.

You were born in Country Y.

You went to Country Z on in the 2015 income year to work and live permanently.

You have no intention of returning to Australia to live permanently.

You have a work permit for Country Z.

You lodge tax returns in Country Z.

Your current work contract in Country Z is for three years and will be extended up to 10 years.

You and your spouse have separated but not divorced.

Your spouse remains in Australia along with two dependent children.

You financially support your two dependent children and do not financially support your former spouse.

Your family do not visit you in Country Z.

You visit your family in Australia and you do not stay at the family home, you stay with one of your adult children.

Your visits to Australia have not exceeded 183 days since leaving and will not exceed 183 days in any future income year.

You have a bank account in Country Z.

You have bank accounts and rental properties along with your former main residence in Australia.

You initially lived in accommodation provided by your employer in Country Z which was for X years.

You purchased household items for this property.

You have now moved to another property in Country Z which has a X year lease.

You are not eligible to contribute to the PSS or the SS 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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