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This edited version has been archived due to the length of time since original publication.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: 1051442672689

Date of advice: 19 October 2018

Ruling

Subject: Residency

Question

Are you a resident of Australia for income tax purposes?

Answer

No. Having considered your circumstances as a whole and the residency tests, it is accepted that you are not a resident of Australia for income tax purposes. Further information on residency can be found by searching 'QC 33232' on ato.gov.au

This ruling applies for the following periods:

Year ending 20XX

Year ending 20XX

Year ending 202X

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

XXX was born in Australia and is an Australian citizen.

YYY was born in overseas and migrated to Australia in 20XX on a spousal visa sponsored by XXX.

YYY was granted permanent residency in 20XX and has been a tax resident since 20XX.

XXX and YYY have been in a de facto relationship since 20XX.

YYY has secured employment overseas and will take up his position on mth/20XX.

YYY has an employment contract to mid-20XX.

XXX is currently employed by a Commonwealth entity.

XXX has a superannuation account with the Public Sector Scheme (PSS), a Commonwealth superannuation corporation.

XXX will resign from their Commonwealth position and relocate overseas.

XXX will seek employment while overseas.

XXX and YYY will rent a family home and will be based in one central location close to their respective places of employment overseas.

The family dog will also be relocated overseas.

XXX and YYY co-own a property in Australia.

XXX and YYY will rent out their Australian primary place of residence through a local real estate agent and will retain bank accounts in Australia to service the rental property.

XXX and YYY will consider the application of CGT event I1 and make an election pursuant to subsection 104-65(2) of the Income Tax Assessment Act 1997.

XXX and YYY plan to visit friends and family in Australia 1-2 times per year.

XXX and YYY intend to return to Australia once the respective employment contracts have ended, no earlier than mid-20XX.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 995-1

Income Tax Assessment Act 1936 subsection 6(1)

Reasons for decision

Summary

Based on the facts you have provided, you are not a resident of Australia for taxation purposes.

Detailed reasoning

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:

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.

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).