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This edited version has been archived due to the length of time since original publication.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

You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4.

Edited version of your written advice

Authorisation Number: 1051318914987

Date of advice: 11 December 2017

Ruling

Subject: Residency

Question:

Are you a resident of Australia for income tax purposes?

Answer:

Yes

This ruling applies for the following period:

Year ended 30 June 2017

Year ending 30 June 2018

The scheme commenced on:

1 July 2016

Relevant facts and circumstances:

You were born in country Y.

You are a citizen of Country Y.

You came to Australia for work purposes in the 2016 income year.

You worked for X months in Australia and then went back to Country Y for a period of time.

You then went to Country Z for work purposes for 2-3 months and then returned to Australia.

You initially lived in accommodation rented through your employer and you now rent a unit independent of your work in Australia.

You will return to Country Y for a short period to attend a wedding and you will return to Australia in early 2018.

You stay with family when you return to Country Y.

You do not have any assets in Country Y.

You have purchased household items in Australia.

You have brought your personal items to Australia.

It is your intention to live and work in Australia for the majority of the year and go to Country Z during our winter for 2-3 months to work.

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

Based on the facts you have provided, we can conclude that you are a resident of Australia for income tax purposes.

ATO view documents

Taxation Ruling TR 98/17 – Income tax: residency status of individuals entering Australia

Taxation Ruling IT 2650 – Income tax: residency – permanent place of abode outside Australia

Taxation Ruling IT 2650A (Addendum) – Income tax: residency – permanent place of abode outside Australia

Other references (Non ATO view – example court cases, etc):

Macquarie Dictionary, [Multimedia], version 5.0.0, 1/10/01

Dempsey and Commissioner of Taxation [2014] AATA 335 (29 May 2014)

Federal Commissioner of Taxation v Miller [1946] HCA 23; (1946) 73 CLR 93.

Levene v Inland Revenue Commissioners [1928] UKHL 1; [1928] AC 217.

Applegate v Federal Commissioner of Taxation [1978] 1 NSWLR 126

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