Edited version of private advice

Authorisation Number: 1012650965136

Ruling

Subject: Residency

Question 1

Are you an Australian resident for income taxation purposes?

Answer

No

This ruling applies for the following periods:

Year ended 30 June 2013

Year ending 30 June 2014

The scheme commences on:

1 July 2012

Relevant facts and circumstances

You were born in Country A.

You arrived in Australia with your parents and siblings over 20 years ago.

Australia has been your permanent home until you moved to Country B.

You do not have Australian citizenship.

You are divorced and have a number of children, from your ex-spouse in Australia, ranging in ages in Australia.

You support your children financially.

You have a defacto partner in Country B and are expecting a new born.

You intend to marry your partner in Country B.

You are permanently employed as manager of Country B and Country C since 20XX.

You are employed by an Australian company and seconded to a Country B Company.

You have an employment contract with the Country B Company.

The Australian company's secondment agreement states that the Country B Company's employment agreement prevails over the Australian company's agreement.

You do not perform any work in Australia.

Your dependent children did not join you in Country B. They live with your ex-spouse.

You have a work visa in Country B. This visa is renewable yearly.

You rent an apartment in on a 12 monthly renewable lease. You intend to extend the lease when it expires.

You own a property in Australia which is let under a commercial residential lease for 12 months renewable.

You have not purchased a property in Country B because foreign ownership rules prevent non Country B nationals from owning property.

You will be able to purchase a property in your spouse's name as tenants in common once you are married

You have an Australian bank account where your salary is deposited and you also receive rental income into this bank account.

You have a transaction account with Country B bank where your salary from the Country B employer is paid to. You use this account to meet living expenses in the Country B.

You have a bank account in Country D with a small balance.

You have a credit card with an Australian bank.

You have private health insurance in Australia which is predominantly to provide health services to your children.

You returned to Australia on occasions for family and leisure.

You stayed in Australia last year to care for your parent in the last months of their life.

You have no intention of returning to Australia permanently.

You have never been on the electoral role.

You have no social and sporting connections in Australia.

You have no sporting connections in Country B.

You and your spouse are not employee of a Commonwealth Government of Australia for superannuation purposes.

Reasons for decision

Generally where you are a resident of Australia for taxation purposes, your assessable income includes income gained from all sources, whether in or out of Australia. However, where you are a foreign resident, your assessable income includes only income derived from an Australian source. 

The terms 'resident' and 'resident of Australia', in regard to an individual, are defined within the tax provisions and provides four tests to ascertain the residency status.

Relevant to your situation are the first two tests which are examined in Taxation Ruling IT 2650 Income Tax: Residency - permanent place of abode outside Australia, a copy of which is available from www.ato.gov.au.

Given regard to your circumstances as a whole and a consideration of the relevant residency tests, it is accepted that you are not a resident of Australia for tax purposes.