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This edited version has been archived due to the length of time since original publication.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

Authorisation Number: 1012641181106

Ruling

Subject: Residency

Question

Are you a resident of Australia for taxation purposes?

Answer

Yes

This ruling applies for the following period

Year ending 30 June 2015

Year ending 30 June 2016

The scheme commences on

1 July 2014

Relevant facts and circumstances

You are a citizen of Australia.

Your spouse has accepted a position in an overseas country for X years.

You are entitled to reside in the overseas during the contract period, but you are not entitled to a working visa unless you can obtain sponsorship from a company in the overseas country.

You intend to engage in work with Australian employers while living overseas.

Relevant legislative provisions

Section 995-1(1) of the Income Tax Assessment Act 1997

Subsection 6(1) of the Income Tax Assessment Act 1936

Section 6-5 of the Income Tax Assessment Act 1997

Reasons for decision

An Australian resident for tax purposes is defined in subsection 995-1(1) of the Income Tax Assessment Act 1997 (ITAA 1997) as a person who is a resident of Australia for the purposes 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, which provides four tests to ascertain whether a taxpayer is an Australian resident for income tax purposes. These tests are:

    1. The resides test;

    2. The domicile test;

    3. The 183 day test; and

    4. The superannuation test.

Your residency

Under the domicile test, a person is a resident of Australia if their domicile is in Australia unless the Commissioner is satisfied they have a permanent place of abode outside of Australia.

Your domicile of origin is in Australia. You will not acquire a new domicile of choice by moving to the overseas country for the purpose of your spouse completing a work contract.

In regards to permanent place of abode:

    • You are travelling to the overseas country as you spouse has accepted a X year employment contract. Once this is complete, you have an intention of returning to Australia with your spouse.

    • You will be renting accommodation in the overseas country.

    • Your main residence and the majority of your assets are in Australia.

    • You have strong family connections in Australia.

Based on the reasons discussed above, the Commissioner is not satisfied that you will have a permanent place of abode while in the overseas country. Therefore, you will remain a resident of Australia under this test for the period of time you are overseas. This applies to you as an individual entity and is so whether you are unemployed, an employee, or a sole trader.


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