Edited version of private ruling

Authorisation Number: 1011873133671

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Ruling

Subject: residency status

Question

Are you an Australian resident for taxation purposes from part-way through 2009 to the present?

Answer

Yes.

This ruling applies for the following periods

Year ending 30 June 2009

Year ending 30 June 2010

Year ending 30 June 2011

The scheme commenced on

During 2009

Relevant facts

You lived in Australia from 2009 to 2011 as a full-time student.

You were staying in rented accommodation in city A and engaged in part-time work.

You now live with your Australian partner in city A. You and your partner own this home.

You left Australia for approximately X weeks to visit family and returned to Australia. You returned on a working holiday visa. This visa is valid for twelve months.

You have secured two permanent part-time positions.

You have a bank account in Australia.

You intend to apply for a permanent resident visa in the near future.

Relevant legislative provisions

Income Tax Assessment Act 1997 subsection 995-1(1).

Income Tax Assessment Act 1936 subsection 6(1).

Income Tax Assessment Act 1997 Division 6.

Reasons for decision

Residency

Residency status is a question of fact. Your residency status is relevant in determining your liability to Australian income tax.

The term Australian resident is defined in section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997) to mean a person who is a resident of Australia for the purposes of the Income Tax Assessment Act 1936 (ITAA 1936).

Subsection 6(1) of the ITAA 1936 provides four tests to determine whether a person is a resident of Australia for income tax purposes. These tests are:

· the resides test;

· the domicile and permanent place of abode test;

· the 183 day test; and

· the Commonwealth superannuation fund 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. However, where an individual does not reside in Australia according to ordinary concepts, they may still be considered to be a resident of Australia for tax purposes if they satisfy the conditions of one of the other three tests.

The resides test

The Macquarie Dictionary defines reside as to dwell permanently or for a considerable time, have ones abode for a time.

The Shorter Oxford English Dictionary defines reside as to dwell permanently, or for a considerable time, to have ones settled or usual abode, to live in or at a particular place.

The period of physical presence in Australia is not by itself decisive when determining whether an individual resides here. All the facts and circumstances that describe an individual's behaviour in Australia are relevant in determining the residency status. No single factor is necessarily decisive. The following factors are useful when determining whether a person is residing in Australia:

· intention or purpose of presence,

· family and/or employment ties,

· maintenance and location of assets, and

· social and living arrangements.

In your case, you came to Australia on a student visa. During this period you were a full-time student and also had some part-time employment. You have lived in city A since your arrival. You are now in Australia on a working holiday visa. You are living with your partner in city A and have two permanent part-time positions. You intend to apply for a permanent residency visa in the near future. You and your partner own the home you live in.

Based on the factors listed above and your settled lifestyle in city A, we consider that you are residing in Australia and have been since 2009.

As you meet the resides test, it is not necessary to consider the other three residency tests. You are considered to be an Australian resident for tax purposes since part-way though 2009.