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This edited version has been archived due to the length of time since original publication.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: 1051268621608

Date of advice: 14 August 2017

Ruling

Subject: Residency

Question

Were you a resident of Australia for taxation purposes?

Answer

Yes

This ruling applies for the following periods:

Year ended 30 June 2014

Year ended 30 June 2015

Year ended 30 June 2016

The scheme commences on:

1 July 2013

Relevant facts and circumstances

You were born in Country X.

You are a citizen of Country X.

Your spouse is a citizen of Country X.

You and your spouse were granted Australian permanent residency visa.

You and your family moved to Australia.

The visa allows you to stay in Australia permanently which you intend to do so.

You have two children; one is currently study at university in Australia; the other child is running own business in Australia.

You went back to Country X several times since first arriving; the purposes of each visit were to look after your parents.

You stayed with your parents while you were in Country X visiting them.

You were not accompanied by your spouse.

You are employed in Australia.

You and your family live in a family house which you own.

You purchased an investment property in Australia.

You have a bank account in Australia.

You have a superannuation account in Australia.

You are members of two Associations in Sydney.

You enrolled in a course with TAFE; however, you did not finish the course due to personal reasons.

You are not a member of any clubs in Country X.

You did not have any foreign source income in 2014 – 16FY.

You lodged 2014 – 2016 FY tax returns as a resident.

You and your spouse have never been Commonwealth Government of Australia employees for superannuation purposes.

Relevant legislative provisions

Income Tax Assessment Act 1936 Subsection 6(1)

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

Reasons for decision

Section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997) defines an Australian resident for taxation 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:

The first two tests are examined in detail in Taxation Ruling IT 2650 – Income tax: residency – permanent place of abode outside Australia. The latter two tests are relatively self-explanatory as they require the individual to either be physical present in Australia for a period greater than 183 days or be eligible to contribute to the PSS or CSS superannuation schemes.

If any one of these tests is met, an individual will be a resident of Australia for taxation purposes.

In your case, you were granted an Australian permanent residency visa; you and your family moved to Australia; you have been residing at a permanent address for a period of time, your spouse lives with you in Australia and it is your intention to reside in Australia permanently.

You made several trips to Country X in 2014 – 2016FY; however, these trips were only for short periods and the purpose of each trip was to look after your parents.

Based on the facts you have provided, you became a resident of Australia from when you entered Australia. Accordingly, you were a resident of Australia for taxation purposes.

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