1051517805865 | Legal database

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This edited version has been archived due to the length of time since original publication.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

Authorisation Number: 1051517805865

Date of advice: 20 May 2019

Ruling

Subject: Residency of Australia for taxation purposes.

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

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

You were born in Australia.

You are a citizen of Australia.

You are not a permanent resident of any other country.

You and your family went to country Y in the 20XX income year to live and work.

You entered Country Y on a visa which allows you and your family to be in Country Y for years.

You intend on establishing a business in Country Y.

You have rented a property in Country Y for you and your family to live in.

You have had your belongings from Australia shipped to country Y.

Your family home in Australia is being rented out.

You have an investment property in Australia which is currently being rented out.

You have two bank accounts and a credit card account in Australia.

You have a vehicle in Australia.

Your spouse is not currently working in Country Y but intends to do so in the future.

Your child has commenced some social activities in country Y.

You have established social connections in Country Y.

You have ceased your social activities in Australia.

You will return to Australia while in Country Y but will not exceed 183 days in any financial year.

You will stay in hotels or with your spouse's family when in Australia.

Your parents and siblings remain living in Australia.

You are the director and or shareholder of a number of companies and family trust in Australia.

You and your spouse are not eligible to contribute to the PSS or the CSS super 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:

· the resides test,

· the domicile test,

· the 183 day test, and

· the superannuation test.

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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