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This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law.

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Edited version of your private ruling

Authorisation Number: 1012398009202

This edited version of your ruling will be published in the public register of private binding rulings after 28 days from the issue date of the ruling. The attached private rulings fact sheet has more information.

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Ruling

Subject: Residency

Question and answer:

Are you a resident of Australia for income tax purposes?

Yes.

This ruling applies for the following periods:

Year ended 30 June 2008

Year ended 30 June 2009

Year ended 30 June 2010

Year ended 30 June 2011

Year ended 30 June 2012

Year ended 30 June 2013

The scheme commenced on:

1 July 2007

Relevant facts and circumstances

You were born in country X and are a citizen of country X.

You arrived in Australia with your family in the 1990's.

You lived and worked in Australia from the late 1990's to the relevant year.

You returned to live in country X in the relevant year.

You purchased a family home in Australia.

Part of your family moved back to country X during the relevant year.

You purchased a residential house in country X which was to be used as a holiday house. You and your family members stayed in this house when in country X.

You made numerous trips to country X during the last few years of your time in Australia for family reasons.

Your Australian assets included the family home, motor vehicles, a share portfolio, savings accounts and superannuation.

Your Australian house was sold and you leased other accommodation until your departure for country X.

You continued to work in Australia until you left the country.

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 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. None of the other tests need be applied if the 'resides test' is satisfied.

The Commissioner's view on the resides test is contained in Taxation Ruling TR 98/17 Income tax: residency status of individuals entering Australia.

An individual may be considered a resident under the resides test if their behaviour while they are here is such that they exhibit a degree of continuity, routine or habit that is consistent with a person residing in Australia according to the ordinary meaning of the word 'reside'. Factors that can be taken into account when ascertaining the character of a person's behaviour include the intention or purpose of the individual's stay in Australia, presence of family in Australia, location of assets and social and living arrangements.

In your case, we note that:

    · you lived and worked in Australia for over Y years;

    · your family lived with you in Australia;

    · you had a family home in Australia; and

    · you owned substantial assets in Australia in addition to your house.

Based on the above, it is considered that you were residing in Australia according to ordinary concepts. Therefore, you have satisfied the resides test of residency and none of the other tests need be applied.

You are an Australian resident for income tax purposes.


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