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Edited version of your private ruling
Authorisation Number: 1012410168713
Ruling
Subject: Residency
Questions and answers
Are you a resident of Australia for taxation purposes?
Yes
This ruling applies for the following periods
Year ended 30 June 2010
Year ended 30 June 2011
Year ended 30 June 2012
Year ended 30 June 2013
The scheme commences on:
1 July 2009
Relevant facts and circumstances
You left Australia for Country A as your spouse had employment there.
You intended to return to Australia within two years.
Due to the Global Financial Crisis your spouse's employer required them to continue their employment in country A.
You maintained investments in Australia including at least one bank account.
You have maintained your private health insurance policy in Australia while you are in the Country A.
You are renting accommodation overseas.
Close family members have remained in Australia.
Your spouse was diagnosed with a serious illness in mid 200X.
This medical condition has prevented you from returning to Australia.
On the advice of a specialist in Country A your spouse had to remain in the Country for ongoing treatment including close monitoring of the condition and multiple life saving medications they were required to undertake.
Your spouse has undergone intensive treatment involving hospital stays for the condition.
In mid 20XX your spouse's specialist recommended that they not go on long international flights until the ongoing tests indicated stability of their condition so that the could return to Australia for monitoring and treatment or, tests indicated an acceleration in the condition, requiring surgery which after convalescence would allow them to return to Australia.
Testing of their condition later in 20XX found that the condition had stabilised and they could now return to Australia.
Your spouse has begun searching for employment in Australia.
You will return to Australia shortly.
You will rent the property you own in Country A out.
You will be living with a member of your family, while you search for an apartment to live in upon your return to Australia.
Relevant legislative provisions
Income Tax Assessment Act 1936 Subsection6(1).
Income Tax Assessment Act 1997 Section 6-5.
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 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 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. 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.
Your spouse's circumstances are similar to those established in FCT V Executors of the Estate of Subrahmanym 2002 ATC 4001.
As your circumstances are linked to those of your spouse the findings in this case are relevant to you.
The resides test
The ordinary meaning of the word 'reside', according to the dictionary definition, 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.
In your case, you were residing in Country A for an extended period due to an illness that precluded you from returning to Australia due to your spouse's medical treatment. It was your intention to return to Australia permanently but this could not happen until your spouse's medical condition stabilised. You are considered to be residing in Australia under this test.
As you are considered to be a resident under the residency test there is no reason to consider the other tests.