| Disclaimer This edited version has been archived due to the length of time since original publication.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 private ruling
Authorisation Number: 1011608281553
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
Question
Are you an Australian resident for taxation purposes?
Answer
Yes
This ruling applies for the following periods:
Year ended 30 June 2009
Year ended 30 June 2010
The scheme commences on:
1 July 2008
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.
Your country of origin is Country X.
You originally arrived in Australia on a student visa in the 2004-05 income year and studied full time in Australia for the next three years.
You then applied for a working visa in the 2006-07 income year and six months into the working visa, you received full time employment for six months.
You returned to the Country X in 2007 until 2008.
You returned to Australia in early 2008 on a Sponsored visa.
You have an employment contract in Australia for three years and this should lead to permanent employment.
The purpose of your visit to Australia is to take up permanent residency here.
You have a permanent place to live in Australia, a rented accommodation.
You have a bank account in Australia.
You do not have a permanent place of abode in Country X.
You do not have any assets in Country X.
Relevant legislative provisions
Income Tax Assessment Act 1936 Subsection 6(1).
Income Tax Assessment Act 1997 Subsection 995-1.
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.
An Australian resident is defined in subsection 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997) to be 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. These tests are:
1. The resides test
2. The domicile test
3. The 183 day test
4. The superannuation test
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. If the primary test is satisfied the remaining three tests do not need to be considered as residency for Australian tax purposes has been established.
Taxation Ruling TR 98/17 considers the residency status of individuals entering Australia and states that the period of physical presence or length of time in Australia is not, by itself, decisive when determining whether an individual resides here. However, an individuals behaviour over the time spent in Australia may reflect a degree of continuity, routine of habit that is consistent with residing here.
The following factors were taken into account in determining your residency status:
You arrived in Australia in early 2008 on a Sponsored visa.
The purpose of your visit to Australia is to take up permanent residency here.
You have an employment contract in Australia for three years and this should lead to permanent employment.
You have a permanent place to live in Australia, a rented accommodation.
You have a bank account in Australia.
You do not have a permanent place of abode in Country X.
You do not have any assets in Country X.
Based on the information you have provided, it is considered that you are an Australian resident for taxation purposes from the date of your arrival in Australia in early 2008 as your behaviour reflects a degree of continuity, routine or habit that is consistent with residing here.