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This edited version has been archived due to the length of time since original publication.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: 1051389282070

Date of advice: 22 June 2018

Ruling

Subject: Residency

Question

Are you a resident of Australia for income tax purposes?

Answer

No

This ruling applies for the following periods:

Year ending 30 June 20xx

Year ending 30 June 20xx

Year ending 30 June 20xx

Year ending 30 June 20xx

The scheme commences on:

1 July 20xx

Relevant facts and circumstances

You were born in Australia.

You are a citizen of Australia and Country Z.

You are a Mine operations consultant.

You have your own business and you consult both in Australia and around the world.

You currently reside in Country Y with your spouse.

You went to Country Y with your spouse in the 20xx income year.

You enter Country Y on a tourist visa.

You live in an apartment with your spouse in Country Y.

The rental agreement for the apartment in Country Y is in your spouse’s name.

You carry out your consultancy work from Country Y.

You travel from Country Y to other countries to carry out your consultancy work.

You and your spouse own a home in Australia which is currently being lived in by your child.

You have not been charging your child rent but intend to commence a rental arrangement with them soon.

You have a vehicle registered in your name in Australia.

You left the furnishings in the house in Australia.

You have retained your medical insurance in Australia.

You spent around 28 days in Australia in the 20xx income year.

You have spent around 14 days in Australia in the 20xx income year.

You stay in the family home in Australia when you return to Australia.

Neither you nor your spouse are 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 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997) provides that where you are a resident of Australia for taxation purposes, your assessable income includes income gained from all sources, whether in or out of Australia. However, where you are a foreign resident, your assessable income includes only income derived from an Australian source.

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 will not satisfy any of the tests of residency.

Accordingly you are not a resident of Australia for income tax purposes under section 995-1(1) of the ITAA 1997 and subsection 6(1) of the ITAA 1936.

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