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This edited version has been archived due to the length of time since original publication.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: 1051487204545

Date of advice: 25 February 2019

Ruling

Subject: Residency

Question

Are you a resident of Australia for taxation purposes?

Answer

Yes

This ruling applies for the following period:

Year ending 30 June 20XX

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

You were born in Country Y.

You are a citizen of Country Y.

You are a permanent resident of Country X and Country Z.

You have entered Australia on a Guardianship Visa which allows you to be in Australia from X XXX 20XX to XX XXXX 2021.

You intend on being in Australia for the duration of your visa.

You arrived in Australia with your children in the 2016 income year.

Your children are attending school in Australia.

You have purchased an apartment in Australia.

You have purchased furniture and a car in Australia.

You care for your children in Australia.

You return home to visit your spouse 3-4 weeks a year.

Your spouse comes to Australia to stay with you and the children for up to 2 months a year.

Your spouse is paying for all your expenses while you are in Australia.

You do not earn any income in Australia.

You pay tax on your income in Country Y.

Relevant legislative provisions

Income Tax Assessment Act 1936 Subsection 6(1).

Income tax Assessment Act 1997 Section 6-5.

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

Reasons for decision

Section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997) advises that where you are an Australian resident for taxation purposes, your assessable income includes income gained from all sources, whether in or out of Australia. However, where you are a non-resident of Australia for taxation purposes, your assessable income includes only income from an Australian source.

Subsection 995-1(1) of the ITAA 1997 defines an Australian resident as a person who is a resident of Australia for the purpose 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. These tests are:

The first two tests are examined in detail in Taxation Ruling IT 2650: Residency - Permanent Place of Abode outside Australia.

The primary test for deciding the residency status of an individual is whether the individual resides in Australia according to the ordinary meaning of the word resides. However, where an individual does not reside in Australia according to ordinary concepts, they may still be considered to be an Australian resident for tax purposes if they satisfy the conditions of one of the three other tests.

The resides test

The ordinary meaning of the word 'reside', according to the Macquarie Dictionary, 2001, rev. 3rd edition, The Macquarie Library Pty Ltd, NSW, 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'.

The primary test for deciding the residency status of an individual is whether the individual resides in Australia according to the ordinary meaning of the word resides.

You arrived in Australia in the 20XX income year with your children.

You are on a Guardianship Visa which allows you to remain in Australia until XX XXX 2021.

You intend on being in Australia for the duration of your visa.

You care for your children full-time while they attend school in Australia.

You purchased an apartment in Australia along with furniture for the apartment and a car.

You visit your spouse 3-4 weeks a year and your spouse comes to Australia to stay with you and the children for up to 2 months a year.

You are therefore residing in Australia according to ordinary concepts and you are a resident of Australia for tax purposes according to this test.

Your residency status

You are a resident of Australia for taxation purposes.

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