Edited version of private ruling

Authorisation Number: 1011748666378

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Ruling

Subject: Residency - working overseas

Question 1

Are you an Australian resident for the 2008-09 to 2010-11 income years?

Answer

No.

Question 2

Are you an Australian resident for 2004-05 and 2007-08 income years?

Answer

Declined to rule.

This ruling applies for the following periods

Year ended 30 June 2009

Year ended 30 June 2010

Year ended 30 June 2011

The scheme commenced on

1 July 2004

Relevant facts and circumstances

You are an Australian citizen.

You departed Australia in 2004 to work in country X.

You have lived and worked outside Australia ever since.

Your spouse was born in another country and has obtained citizenship in Australia. Your spouse has remained in Australia since your departure to pursue her own professional career.

Your children are pursuing university and high school in Australia, and accordingly did not accompany you overseas.

You departed Australia in order to undertake overseas employment. You were initially employed by a foreign company. You are currently employed by another foreign company.

During your overseas periods, you have not returned to Australia for more than six months in an income year.

Upon departing Australia, it was your intention to reside overseas indefinitely. You intend to retire in country X under a permanent retirement visa, subject to approval of your application.

In country X you have resided in a rented accommodation subject to long term rental agreement. Whilst away in other foreign countries you continued to maintain your rented accommodation and motor vehicle in country X.

Whilst you maintained a spouse in Australia, you have been in a long-term de facto relationship with your partner in country X for a number of years. Your de facto partner has resided with you for the past few years. You have not yet separated or divorced from your spouses in Australia, as you both have made the decision to remain together for the purposes of your children.

Recently, you purchased a property in country X. Renovations were carried out on this property until you moved into the property permanently. You and your de facto partner have resided in this property ever since.

You recently purchased an additional studio apartment in country X.

You have held bank account and credit cards in country X.

You owned a motor vehicle in country X with the relevant country X driver's licence.

You maintain a bank account in Australia as you receive a higher return on your cash in Australian banks.

You jointly with your spouse, own a residential property in Australia which your spouse and children reside in, two investment properties and one block of land.

Any return trips to Australia over the last few years were for the purpose of holidaying and inspecting your investment properties. During those holidays you stayed in the residential property or holiday accommodation in other States.

You hold a current Australian driver's licence.

You do not own a motor vehicle in Australia.

You do not hold private health insurance in Australia, nor are you a member of a health, golf or other clubs in Australia.

You vote in Australian Federal elections via Australian embassies overseas.

Relevant legislative provisions

Income Tax Assessment Act 1936 Subsection 6(1)

Reasons for decision

The terms resident and resident of Australia, in regard to an individual, 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 taxpayer is a resident of Australia.

Two of the tests that are relevant to your circumstance depend on whether or not you could be considered to be residing permanently or for a considerable period of time in country X, such that it is your settled or usual place of abode.

As you have lived and worked in country X since 2004 and intend to reside in country X indefinitely. Although you maintain an association with Australia through your family and investments, your associations with country X are more significant as you will be residing and working full time there. 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 a superannuation scheme set up for employees of the Commonwealth. As you are not members of such a scheme, however, this test will not apply.

In view of the above, it has been concluded that you will no be a resident of Australia for taxation purposes while working overseas.