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Ruling

Subject: Spouse tax offset

Question

Are you entitled to a spouse tax offset?

Answer

Yes.

This ruling applies for the following period

Year ended 30 June 2012

The scheme commenced on

1 July 2011

Relevant facts

You married your spouse overseas.

You have applied to have your spouse join you in Australia soon after you married.

You have an interview with an immigration case worker.

You expect your spouse to be granted a visa and come to Australia shortly.

Relevant legislative provisions

Tax Assessment Act 1936 Subsection 159J

Tax Assessment Act 1997 Section 995-1

Reasons for decision

Subsection 159J of the Income Tax Assessment Act 1936 (ITAA 1936) provides that a taxpayer is entitled to a tax offset where, during the year of income, they contributed to the maintenance of a spouse who is a 'resident of Australia'.

A spouse is defined in section 995-1 of the Income Tax Assessment Act 1997 as a wife to whom you are legally married, or a person who lives with you on a genuine domestic basis as your wife.

A 'resident of Australia' is defined in subsection 6(1) of the ITAA 1936. Subsection 159J(3A) of the ITAA 1936 provides that, in applying the definition of resident in subsection 6(1) of the ITAA 1936, for the purposes of the dependant spouse tax offset the dependant spouse of a taxpayer will be taken to have the same domicile as the taxpayer.

The taxpayer's spouse is therefore, deemed to have a domicile in Australia for the purposes of the definition of resident in subsection 6(1) of the ITAA 1936. Subsection 6(1) of the ITAA 1936 defines a resident to include a person whose domicile is in Australia, unless the Commissioner is satisfied that their permanent place of abode is outside Australia.

The leading case on permanent place of abode is Applegate v. FC of T 79 ATC 4307; (1979) 9 ATR 899. The Federal Court stated that in respect of the definition of 'resident', a permanent place of abode does not have to be everlasting or forever but it is rather used in contrast to temporary or transitory. Taxation Ruling IT 2650 also considers residency and permanent place of abode outside Australia. Paragraph 12 of IT 2650 states that 'place of abode' refers to a person's residence, where one lives with one's family and sleeps 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.

Where a taxpayer marries while overseas, the spouse is considered to have a permanent place of abode in Australia, provided the spouse has taken timely and appropriate steps to migrate to Australia.

In your case, your spouse took timely and appropriate steps to migrate to Australia soon after your marriage. Therefore, you are entitled to claim a spouse tax offset from when you were married.