Edited version of private ruling

Authorisation Number: 1011667914280

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Ruling

Subject: Residency

1. Are you a resident of Australia for taxation purposes?

No.

2. Are you entitled to the tax free threshold for part of the 2009-10 financial year?

Yes.

This ruling applies for the following period:

Year ended 30 June 2010

The scheme commenced 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 left Australia in the 2009-10 income year to take up an employment opportunity overseas.

Your family has relocated overseas with you.

You maintain a home in the foreign country.

Your children go to school in that country.

Your employment in Australia has been terminated.

You have suspended your Australian health insurance.

You no longer receive benefits from Medicare.

Your home in Australia has been rented out while you are living and working overseas.

Your initial contract with your employer is for 12 months.

You have an option to extend this contract.

You intend to extend the contract if you can.

You have left Australia for an indefinite period of time.

You are not sure exactly how long you will be living overseas.

You are required to pay tax on your income in the foreign country.

Neither you nor your spouse are or have ever been Commonwealth of Australia employees.

Relevant legislative provisions

Income Tax Assessment Act 1936 Section 6(1)

Income Tax Assessment Act 1997 Section 6-5

Reasons for decision

Residency

Subsection 995-1(1) of the Income Tax Assessment Act 1997 (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 resides test.

· The domicile test.

· The 183 day test.

· The superannuation test.

The first two tests are examined in detail in Taxation Ruling IT 2650.

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.

In your case, you left Australia in the 2009-10 income year to reside for an unknown period of time overseas. As you will not be living in Australia, you would therefore not be considered to be residing in Australia according to ordinary concepts.

The domicile test

If a person is considered to have their domicile in Australia they will be considered an Australian resident unless the Commissioner is satisfied they have a permanent place of abode outside of Australia.

In order to show that a new domicile of choice in a country outside Australia has been adopted, the person must be able prove an intention to make his or her home indefinitely in that country.

The expression 'place of abode' refers to a person's residence, where they live with their family and sleep at night. In essence, a person's place of abode is that person's dwelling place or the physical surroundings in which a person lives.

A permanent place of abode does not have to be 'everlasting' or 'forever'. It does not mean an abode in which a person intends to live for the rest of his or her life. An intention to return to Australia in the foreseeable future to live does not prevent the taxpayer in the meantime setting up a permanent place of abode elsewhere.

In your case, you have established a permanent place of abode overseas based on the following information:

· you do not intend to return to Australia in the foreseeable future

· you have been accompanied by your family to reside in the foreign country

· you have set up a home in the foreign country, and

· your children are attending school in the foreign country.

Based on these facts, it is considered that you will have established a permanent place of abode outside Australia. Consequently, you would not satisfy the domicile test.

183 day test

When a person is present in Australia for 183 days during the year of income the person will be a resident, unless the Commissioner is satisfied that the person's usual place of abode is outside Australia and the person does not intend to take up residence in Australia.

You left Australia in the 2009-10 income year and you were a resident for taxation purposes from
1 July 2009 until you left Australia at which point you ceased being a resident.

You are required to declare all income derived from the period you were an Australian resident in your tax return.

The superannuation test

An individual is still considered to be a resident if that person is eligible to contribute to the Public Service Superannuation Scheme (PSS) or the Commonwealth Superannuation Scheme (CSS), or that person is the spouse or child under 16 of such a person.

Neither you nor your wife are or have ever been employed by the Commonwealth Government.

You are not a resident under this test.

Your residency status

You are a non-resident of Australia for income tax purposes from the date you left Australia until you return to Australia.

Tax free threshold

The tax free threshold for a resident of Australia for taxation purposes is $6,000.

If you are only a resident for part of an income year your tax free threshold may be less than $6,000.

Please note:

If you cease being an Australian resident or a resident trust for capital gains tax (CGT) purposes, you are taken to have disposed of certain assets for their market value on the day you stopped being a resident.

If you ceased being an Australian resident on or after 12 December 2006, or ceased being a resident trust for CGT purposes on or after that date, you are taken to have disposed of each of your assets that are not taxable Australian property for their market value at the time you ceased being a resident. In the case of any indirect Australian real property interests and options or rights to acquire such interests, you are taken to have immediately re-acquired these assets for their market value.

If you are an individual, you can choose to disregard all capital gains and capital losses you made when you stopped being a resident. If you ceased being a resident on or after 12 December 2006 and you make this choice, those assets are taken to be taxable Australian property until the earlier of:

· a CGT event happening to the assets (for example their sale or disposal), or

· you again becoming an Australian resident.

The effect of making this choice is that the increase or decrease in the value of the assets from the time you cease being a resident to the time of the next CGT event, or of you again becoming a resident, is also taken into account in working out your capital gains or capital losses on those assets. The way you prepare your tax return is generally sufficient evidence of your choice.