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This edited version has been archived due to the length of time since original publication.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.

You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4.

Edited version of your private ruling

Authorisation Number: 1012478466401

Ruling

Subject: Residency

Question and answer

Are you a resident of Australia for tax purposes?

Yes.

This ruling applies for the following periods

Year ended 30 June 2014

Year ended 30 June 2013

Year ended 30 June 2012

The scheme commenced on

1 July 2011

Relevant facts

You are an Australian citizen (Australia is the only country you are a citizen of) and Australia is your country of origin.

You are employed as a researcher and work overseas on a fellowship.

Your work is based in country A

You have a visa which allows you to live and work overseas for a specified period of time.

You entered country A in early 20XX.

During your placement you report to country A and Australia.

The grant is for more than one year from # to #.

From early # you are receiving funding from a charity. You will finish this job in early # and return to work in Australia.

While you were in country A you returned to Australia for over one month in mid to late # after which your spouse and child accompanied you to move to country A in late #.

You live in a small rented apartment in country A.

In Australia, you and your spouse lived in rented accommodation on a long term basis and then moved into your spouse's parent's house in early # then the specific opportunity became available.

Your spouses parents continue to reside at their property and your spouse and child remained there until late # when they were able to fly to country A.

You have maintained your Australian bank accounts.

You have returned to Australia between late # and early # for holidays.

You are a member of a professional society when you are in Australia.

You do not have any social or sporting connections in country A.

You and your wife have never been a Commonwealth Government of Australia employee.

You are over 16 years of age.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 6-5

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 Income Tax Assessment Act 1936 (ITAA 1936) and section 995-1(1) of the Income Tax Assessment Act 1997 (ITAA 1997). 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 a resident of Australia for tax purposes if they meet the conditions of one of the other three tests.

The resides test

The ordinary meaning of the word 'reside', according to the Macquarie Dictionary, 2001, rev. 3rd edition, The Macquarie Library Pty Ltd, NSW, is 'to dwell permanently or for a considerable time; having one's abode for a time', and according to the Compact Edition of the Oxford English Dictionary (1987), 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'.

You reside in Australia as evidenced by:

      • since commencing the fellowship in country A, you have returned X to Australia;

      • you are living in rented accommodation in country A;

      • you do not have any social or sporting connections in country A;

      • you maintain an Australian bank account;

      • your absence from Australia is for the purpose of undertaking training overseas; and

      • you have stated that your position in country A is only temporary and that you will be returning to Australia when your posting concludes.

Accordingly, you are a resident for Australia for tax purposes. Because you meet the 'resides' test, it is not necessary to consider the other tests.


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