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This edited version has been archived due to the length of time since original publication.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: 1051343152679

Date of advice: 28 February 2018

Ruling

Subject: Residency

Question

Are you a resident of Australia for taxation purposes from when you arrived in Australia?

Answer

Yes

This ruling applies for the following period:

Year ended 30 June 20XX

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

Your country of origin is outside Australia.

You are a citizen of that country.

You arrived in Australia in the 20XX/XX financial year. Your partner accompanied you.

Your visa upon arrival to Australia was a Temporary Work (Skilled) visa (subclass 457) due to your partner’s work. This visa lets a skilled worker travel to Australia to work in their nominated occupation for their approved sponsor for up to four years. You have since been granted a Bridging Visa A (BVA). A Bridging visa A (BVA) is a temporary visa. It allows you to stay in Australia after your current substantive visa ceases and while your substantive visa application is being processed.

You have no dependants.

You came to Australia intending to live in Australia.

You intend to reside in Australia permanently.

You have left and returned to Australia four times since first arriving.

You have left Australia four times since your arrival but only for short periods of time.

Your departures were related to your partner’s work. Your partner lives outside of Australia.

You have not lodged any foreign income tax returns while living in Australia.

You haven't maintained any professional, social or sporting connections with your country of origin.

You were renting prior to your arrival in Australia.

You do not have a home available for use in another country. You own no assets outside of Australia.

You have a home that you reside at in Australia

You have assets in Australia, a property and an Australian bank account.

You do not receive any income from sources outside of Australia.

You do not have an employment position being held for you overseas while you're in Australia.

You have no employment in Australia.

Neither you nor your partner has ever been a Commonwealth employee for superannuation purposes.

You have not enrolled in any course that lasts for more than six months while in Australia.

Relevant legislative provisions

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

Income Tax Assessment Act 1936 Subsection 6(1)

Reasons for decision

Residency

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 (ITAA 1936). The definition contains four tests which will help us ascertain whether you were a resident of Australia for income tax purposes. These tests are:

You need only fall within one of these categories to be a resident of Australia and must fall outside all four to be a non-resident. The main test for deciding your residency status is whether you reside in Australia according to the ordinary meaning of the word resides.

(i) the residence according to ordinary concepts test

The ordinary meaning of the word 'reside', according to the Macquarie Dictionary, 2001, rev. 3rd edition, is 'to dwell permanently or for a considerable time; having one's abode for a time', and according to the Compact Edition of the Oxford English Dictionary (1987), is 'to dwell permanently, or for a considerable time, to have one's settled or usual abode, to live in or at a particular place'.

In your case,

In view of the above, the Commissioner considers that your behaviour in Australia reflects a degree of continuity, routine and habit that is consistent with residing here. Accordingly, you are an Australian resident for taxation purposes from the time you arrived in Australia.

Your residency status

Temporary resident

Subsection 995-1(1) of the ITAA 1997 specifies that a taxpayer is a temporary resident if:

Under the Social Security Act 1991, an Australian resident is a person who resides in Australia and is either an Australian citizen or holds a permanent resident visa.

Although you are a resident of Australia for taxation purposes, you are also a temporary resident of Australia because you are not an Australian citizen, you do not have a spouse who is an Australian citizen, and you have not yet received your permanent resident visa. Therefore you are currently a temporary resident.

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).