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Edited version of private advice
Authorisation Number: 1051565508635
Date of advice: 13 August 2019
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 ended 30 June 2018
Year ended 30 June 2019
Year ending 30 June 2020
Year ending 30 June 2021
Year ending 30 June 2022
The scheme commences on:
1 July 2017
Relevant facts and circumstances
You are a dual citizen of Country A and Australia; you migrated to Australia with your parents in 1972.
You are married and have one adult child who attends university in Australia.
You resided at Property A until you went to work in Country B in a senior role for Company A.
You had no intentions to reside in Country B permanently as legally you could not do so, but you had no fixed plans to return to Australia.
You planned to work in the Country B for 2-3 years and then see what opportunities were available in the Country B as well if your visa was to be renewed by your employer or look for opportunities in other countries.
You hold a working visa which is renewed every 3 years and has been renewed for a further 3 years.
Your employment contract is open-ended and you will continue to work in the Country B for as long as possible and will then look at other employment opportunities that can utilise your skills. But it is likely that you will remain in the Country B as your employer has expanded your employment duties due to your past performance being evaluated favourable.
You live in a rented apartment that you furnished, but you are also considering purchasing your own property in Country B but have put this on hold until your Australian Tax residency has been established.
You have purchased a motor vehicle within a month of arriving in Country B.
Your spouse lives with you when they are not in Australia visiting your child and they have residency status in Country B.
You don't maintain social and living arrangements in Australia and only visit Australia from time to time. Since you departed Australia you have returned to Australia for brief periods.
Your visits to Australia were to visit your family during holiday breaks and also visit your parent A who was ill and passed away.
You purchased another property that your child lives at and when you and your spouse visit you stay with your child. You and your spouse have decided not to sell this property until your child finishes University.
You intended to sell property A and listed it with an agent. The property went to auction with no bids and no offers. You have rented property and are waiting for property market to improve before listing.
You have mortgages on the two properties and monies earned in Country B go to paying the mortgages off, as well as the paying off of credit card debts in Australia. You have taken out a personal loan in the Country B to assist with these repayments.
After your parent A passed away your parent B relocated back to Country A. You are able to visit your parent B more frequently as you work in Country B.
You and your spouse are not members of a Public Sector Superannuation Scheme and not eligible employees in respect of the Commonwealth Superannuation Scheme.
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)
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