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Edited version of private ruling
Authorisation Number: 1011884133243
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Ruling
Subject: residency
Question
Are you an Australian resident for taxation purposes in the 2009-10 financial year?
Answer
Yes.
This ruling applies for the following period
Year ended 30 June 2010
The scheme commenced on
1 July 2009
Relevant facts
You were born in, and are a citizen of, Country A.
You maintain a bank account and rental property in Country A.
You and your family migrated to Australia in 2009, and you hold a permanent residency visa for Australia.
You have a joint bank account in Australia with your spouse.
Your children attend school in Australia.
Your spouse has obtained work and has rented a house for your family to live in.
You and your spouse are not a member of a superannuation fund for Commonwealth Government employees.
In the 2009-10 financial year you commenced work in Country B. Your employment contract is for a permanent length of time.
When you travel for work to Country B, you enter the country on a temporary resident visa and stay in employer provided accommodation.
Your family do not accompany you to Country B and have remained in Australia for work and schooling commitments. However they do meet you abroad for a holiday once a year for a two to three week period.
You have not established any financial, social or sporting connections in Country B.
It is your intention to return to Australia to live with your family for the periods you are not required to work in Country B.
Relevant legislative provisions
Income Tax Assessment Act 1936 Subsection 6(1)
Income Tax Assessment Act 1997 Subsection 995-1(1)
Reasons for decision
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 an Australian resident 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. 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.
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 have migrated to Australia with your family and you and your family have established a home and life here. Although you are not present in Australia all the time, you return to Australia on a regular basis.
By contrast, you enter Country B on a temporary resident visa and while you are there you stay in employer provided accommodation. You carry out your work for the weeks you are required to work and then return to Australia to be with your family. You have no other ties or associations in Country Bl.
From the information you have provided you are considered to be residing in Australia under ordinary concepts and as such you satisfy the first statutory test of the definition of resident contained in section 6(1) of the ITAA 1936. As the first test has been satisfied there is no need to examine the remaining tests.
Therefore, you are an Australian resident for taxation purposes during the 2009-10 financial year.