Disclaimer
This edited version has been archived due to the length of time since original publication.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: 1051331599257

Date of advice: 8 February 2018

Ruling

Subject: International Residency

Question 1

Will you be a non-resident of Australia under section 6(1) of the Income Tax Assessment Act 1936?

Answer

Yes

Question 2

Will you be a non-resident of Australia under section 6(1) Income Tax Assessment Act 1936, if your spouse is an Australian resident for tax purposes?

Answer

Yes

Question 3

If you are a resident of Australia for tax purposes under section 6(1) Income Tax Assessment Act 1936, will you be a treaty resident of Country A under article XX of the Agreement between the Government of Australia and the Government of Country A for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income (“DTA”)?

Answer

Not applicable

Question 4

Will you be exempt from taxation under article YY of the DTA in relation to your remuneration derived from your CEO duties of the joint venture?

Answer

Yes

Question 5

Will you be exempt from taxation in Australia under article ZZ of the DTA in relation to your remuneration derived from your local Australian academic position with an Australian university where they will be conducting research and presenting teachings?

Answer

Yes

This ruling applies for the following periods:

Period ending 30 June 2018

Period ending 30 June 2019

Period ending 30 June 2020

The scheme commences on:

1 July 2017

Relevant facts and circumstances

You are a citizen of Country A.

You have not lived in Australia previously.

You are currently employed by an entity which is a joint venture between an Australian University and a university based in Country A.

You will be in Australia to conduct research and provide teachings

Your time in Australia will not exceed 183 days in any financial year.

The costs associated with your duties will not be borne by the Australian University.

You will travel to Australia on a temporary visa.

You maintain a permanent home in Country A in which you currently reside and to which you will return to upon departing Australia after each trip.

Your home will remain untenanted and available for use at all times.

You will retain your house and bank accounts in Country A.

When in Australia you and your spouse will be staying in temporary rental accommodation (campus accommodation or serviced apartment).

Your spouse is also a citizen of Country A.

Your spouse is likely to seek employment in Australia.

Your spouse may spend more than 183 days in Australia in each financial year.

Your spouse will periodically return with you to Country A.

Your spouses’ employer will sponsor your spouse on an Australian temporary visa.

You and your spouse are not eligible to contribute to an Australian Commonwealth Superannuation Scheme

Relevant legislative provisions

Section 6(1) Income Tax Assessment Act 1936

Reasons for decision

Question 1

Detailed reasoning

There are four tests for determining whether an individual is a resident for tax purposes. These tests are:

On the information and facts provided, you do not meet any of the tests and are therefore considered a non-resident for tax purposes.

Question 2

Detailed reasoning

While in some circumstances the circumstances of a spouse may influence the residency status of an individual, as you have had no previous relationship, and are only visiting Australia on a very short term basis your spouse’s residency status does not make you a tax resident of Australia.

Question 3

Detailed reasoning

You are not a resident of Australia for tax purposes under section 6(1) Income Tax Assessment Act 1936, so you are a resident of Country A under Article XX of the Agreement between the Government of Australia and the Government of Country A (Double Tax Agreement or “DTA”) and the ‘tie-break’ provisions of that article are not operative.

Question 4

Detailed reasoning

Under Article YY of the DTA, a resident of Country A can be exempt from taxation of their employment income derived in Australia where the following conditions are met:

As you meet all points for determining exemption from taxation –you will not exceed 183 days, the Joint Venture is not a resident of Australia and your employment will remain with the joint venture you will be exempt from taxation under article YY of the DTA in respect to your remuneration derived from your duties pertaining to the joint venture.

Question 5

Detailed reasoning

As you are a resident of County A and have a requirement to report your income in that country, you meet the requirements of Article ZZ of the DTA that states the income from the activities from your role with the Australian university would be exempt from tax in Australia.

Copyright notice

© Australian Taxation Office for the Commonwealth of Australia

You are free to copy, adapt, modify, transmit and distribute material on this website as you wish (but not in any way that suggests the ATO or the Commonwealth endorses you or any of your services or products).