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Edited version of your private ruling
Authorisation Number: 1012591092205
Ruling
Subject: Residency
Question and answers:
Are you a resident of Australia for taxation purposes?
No.
This ruling applies for the following period:
Year ending 30 June 2014
Year ending 30 June 2015
Year ending 30 June 2016
Year ending 30 June 2017
The scheme commenced on
1 July 2013
Relevant facts
You have moved overseas on a permanent basis.
You do not intend on returning to Australia.
You receive a number of pensions from Australia.
Neither you nor your spouse is eligible to contribute to the relevant Commonwealth super funds.
You are over the age of 16.
Relevant legislative provisions
Income Tax Assessment Act 1997 Subsection 995-1(1)
Income Tax Assessment Act 1936 Subsection 6(1)
Reasons for decision
Residency
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.
The definition offers four tests to ascertain whether each individual taxpayer is a resident of Australia for income tax purposes. These tests are the:
· resides test;
· domicile and permanent place of abode test;
· 183 day test; and
· Commonwealth superannuation fund test.
The primary test for deciding the residency status of each individual is whether they reside in Australia according to the ordinary meaning of the word resides. If the primary test is satisfied the remaining three tests do not need to be considered as residency for Australian tax purposes has been established.
The resides (ordinary concepts) test
The outcomes of several Administrative Appeals Tribunal (AAT) cases have determined that the word 'resides' should be given the widest meaning and there have been a number of factors identified which can assist in determining if a particular taxpayer is a resident of Australia under this test.
Recent case law decisions have considered the following factors in relation to whether the taxpayer was a resident under the 'resides' test:
(i) Physical presence in Australia
(ii) Nationality
(iii) History of residence and movements
(iv) Habits and "mode of life"
(v) Frequency, regularity and duration of visits to Australia
(vi) Purpose of visits to or absences from Australia
(vii) Family and business ties to different countries
(viii) Maintenance of Place of abode.
These factors are similar to those which the Commissioner has said are relevant in determining the residency status of individuals in IT 2650 and Taxation Ruling TR 98/17 Income tax: residency status of individuals entering Australia.
You have gone overseas to live permanently.
You do not intend on returning to Australia.
You are not residing in Australia according to ordinary concepts.
The domicile test
If a person has their domicile in Australia they will be an Australian resident unless the
Commissioner is satisfied they have a permanent place of abode outside of Australia.
A person's domicile is generally their country of birth. This is known as a person's 'domicile of origin'. In order to show that an individual's domicile of choice has been adopted, the person must be able to prove an intention to make his or her home indefinitely in that country.
Your domicile of origin is Australia. In order to show that a new domicile of choice in a country outside Australia has been adopted, the person must be able to prove an intention to make his or her home indefinitely in that country.
In order to show that a new domicile of choice in a country outside Australia has been adopted, the person must be able to prove an intention to make his or her home indefinitely in that country.
You have demonstrated an intention to make the overseas country your home indefinitely, so your domicile of choice not Australia.
You are not a resident under this test.
The 183-day test
Where a person is present in Australia for 183 days during the year of income the person will be a resident, unless the Commissioner is satisfied that the person's usual place of abode is outside Australia and the person does not intend to take up residence in Australia.
You have gone overseas on a permanent basis and you do not intend on returning to Australia.
You are not a resident under this test.
The superannuation test
An individual is still considered to be a resident if that person is eligible to contribute to the PSS or the CSS, or that person is the spouse or child under 16 of such a person. To be eligible to contribute to those schemes, you must be or have been a Commonwealth Government employee.
You or your spouse is not eligible to contribute to the PSS or the CSS.
You are not a resident under this test.
Residency Status
You are not a resident of Australia for taxation purposes.
Please note:
The Commissioner will not rule for an indefinite period of time due to any changes that may occur in the law. In general a ruling can be given for the current financial year plus three future years.