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This edited version has been archived due to the length of time since original publication.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: 1051369351750

Date of advice: 10 May 2018

Ruling

Subject: Residency

Question

Are you an Australian resident for tax purposes?

Answer

No

This ruling applies for the following periods:

Year ending 20XX

Year ending 20XX

Year ending 20XX

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

You were born in Country A.

You became an Australian citizen.

Since becoming an Australian citizen you have lived and worked mostly in Country A.

For the period of the ruling, you have only been in Australia for minimal periods each year, due to business and personal reasons.

You are employed as a Vice General Manager at Company X in Country A and receive a regular monthly salary.

Initially your visits to Australia were for holiday purposes, but then for divorce matters.

You formally separated from your spouse in 20XX.

Since separating, you did not have a fixed place of residence in Australia.

You were granted exclusive occupation of a residential property in Australia.

Most of your friends, social contacts and business associates are still in Country A.

You have a permanent residence in Country A.

You do not intend to move to Australia permanently.

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 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 do not satisfy any of the tests of residency. Therefore you are not a resident of Australia for taxation purposes.

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