| Disclaimer This edited version will be removed from the Database after 30 September 2025. If you believe the issues detailed in this edited version warrant retention in an alternative form, email publicguidance@ato.gov.au This edited version has been archived due to the length of time since original publication.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 private ruling
Authorisation Number: 1011524671522
This edited version of your ruling will be published in the public Register of private binding rulings after 28 days from the issue date of the ruling. The attached private rulings fact sheet has more information.
Please check this edited version to be sure that there are no details remaining that you think may allow you to be identified. Contact us at the address given in the fact sheet if you have any concerns.
Ruling
Subject: Residency - working overseas
Are you an Australian resident for taxation purposes for the period you will be working overseas?
No.
This ruling applies for the following periods:
Year ending 30 June 2010
Year ending 30 June 2011
Year ending 30 June 2012
The scheme commences on:
1 July 2009
Relevant facts and circumstances
This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.
You are an Australian citizen.
You departed Australia in 2010 to take up a position in country A.
Your initial contract in country A is for more than two years. You intend to seek an extension and expect that your employer will be agreeable to this request.
You are accompanied by your spouse and children overseas.
You and your family are living in a rented accommodation in country A for the duration of your contract.
You and your family intend to return to Australia eventually but have no firm plans to do so.
Your children have commenced at the local school in country A.
You have not returned to Australia since arriving in country A.
Your contract provides for two return trips to Australia per year. You will not be returning to Australia outside these arrangements.
Your family home in Australia will be rented out and the tenants will move in to the property in due course. You have advised real estate agents of your intention to sell this house.
In addition to your family home, you also own an investment property in Australia, a small share portfolio and your preserved superannuation.
You and your spouse are not a member of the Commonwealth Government.
Relevant legislative provisions
Income Tax Assessment Act 1936 Subsection 6(1)
Reasons for decision
While these reasons are not part of the private ruling, we provide them to help you to understand how we reached our decision.
The terms 'resident' and 'resident of Australia' are defined in subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936). The definition provides a series of tests to ascertain whether a person is a resident of Australia.
Two of the tests that are relevant to your circumstances depend on whether or not you could be considered to be residing permanently or for a considerable period of time overseas, such that it is your settled or usual place of abode.
You have advised that you intend to work in country A for a period of more than two years. Your family have accompanied you overseas. You and your family are living in a rented accommodation in country A for the duration of your contract. Your children have commenced at the local school in country A. Your family home in Australia will be rented out and you intend to sell this house. Although you maintain an association with Australia through your investment, your associations with overseas are more significant as you will be residing and working full time overseas. Therefore, you would be considered to have established a permanent or long-term residence outside of Australia.
The other residency test that is potentially relevant to your circumstances involves membership of superannuation scheme set up for employees of the Commonwealth.
As you and your spouse are not a member of such a scheme, this test will not apply.
In view of the above, it has been concluded that you are not a resident of Australia for taxation purposes for the period you will be working overseas.