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Ruling

Subject: Residency status

Question and Answer:

Are you a resident of Australia for tax purposes for the duration of your employment in Country X?

No

This ruling applies for the following period:

Year ended 30 June 2011

Year ended 30 June 2012

Year ended 30 June 2013

The scheme commenced on:

1 July 2010

Relevant facts and circumstances

You were born in Australia and are an Australian citizen.

Your country of origin is Australia.

You and your spouse left Australia for Country X on date A in the 2009-10 income year.

You have a working visa.

You have been living with your family in Country X. You are employed by a company in Country X.

Your children attend school in Country X.

You are renting a house in Country X. You have taken personal belongings with you including a computer, photo albums, toys, bikes and clothes. You did not take any furniture or white goods.

You sold your family home in Australia, several months after leaving Australia as you intend to live in another state on returning to Australia. You intend to buy a house and have requested a friend to commence looking for a house for you.

You plan to live in Country X until date B at the end of the 2012-13 income year.

Your assets in Country X are a bank account and a dwelling which you bought as an investment to offer to family and friends when they visit. You intend to sell the dwelling when you leave.

Your assets in Australia include shares listed on the Australian Share Market and a considerable amount in cash/savings accounts and term deposits.

Your employment duties involve returning to Australia routinely. You stay with family and friends and in hotels.

Your family intends to return to Australia for several weeks in the 2012-13 income year to visit family. You plan to join your family in Australia and travel around Australia visiting friends and family.

Your social and sporting commitments with Australia include email and ringing friends on a regular basis and you are a member an Association.

You do not have any social or sporting commitments with Country X.

You are not eligible to contribute to the Public Service Superannuation Scheme or the Commonwealth Superannuation Scheme.

Relevant legislative provisions

Income Tax Assessment Act 1936 Subsection 6(1).

Income Tax Assessment Act 1997 Section 995-1.

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 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 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 dictionary meaning, 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.

As you have resided in Country X since date A in the 2009-10 income year and it is your intention to reside there until date B, you are not a resident of Australia for taxation purposes under the resides test.

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.

For the period date A to date B it is considered that you will not be an Australian resident for taxation purposes under the domicile test for the following reasons:

You plan to stay in Country X from date A in the 2009-10 income year until date B at the end of the 2012-13 income year which is a considerable length of time.

Your family has accompanied you to Country X and thus your emotional ties are in Country X.

Your children are going to school in Country X.

You have gone to Country X for employment purposes and are living in one location with your family.

You have taken your personal belongings with you including a computer, photo albums, toys, bikes and clothes.

You have sold your Australian family home.

You have purchased a dwelling in Country X.

We have noted that you are living in rental accommodation with your family in Country X, and that you and your family have taken personal belongings to Country X but did not take any white goods. You intend to buy a house on return to Australia and have requested a friend to commence looking for a house for you and your family. Further, you have considerable cash and shares in Australia. You visit Australia for work purposes and your family is planning to visit Australia for several weeks in the 2012-13 income year. You and your family keep in touch with friends and family in Australia by phone calls and email. Thus, in your case there is no evidence to make your home indefinitely in Country X . You have maintained your Australian domicile.

As mentioned, the expression 'place of abode' refers to where a person lives with their family. In your case, you are living with your family in Country X . Furthermore, a permanent place of abode does not have to be forever and an intention to return in the foreseeable future to live does not prevent a person in the meantime setting up a permanent place of abode elsewhere.

In your situation, you rent a property in Country X and your spouse and children have accompanied you to Country X. Your emotional ties are there. You have sold your house in Australia. You have purchased a dwelling in Country X to offer friends and family when they visit. Even though you maintain an association with Australia through your family, friends and investments, your association with Country X is more significant. Your intention is to remain there for more than two years in total.

Based on these facts, it is considered that you have established a permanent place of abode in Country X .

Thus you are not a resident of Australia under domicile test as you have established a permanent place of abode overseas.

The 183-day test

This test does not apply to you as it has been established that your usual place of abode from date A is in Country X.

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. Generally Commonwealth Government employees are eligible to contribute to the PSS or CSS.

This test does not apply to you as you are not eligible to contribute to the Public Service Superannuation Scheme or the Commonwealth Superannuation Scheme.

Your residency status from date A to date B

From date A to date B as you are not a resident of Australia under any tests of residency outlined in subsection 6(1) of the ITAA 1936, you are a non-resident of Australia for taxation purposes.