Edited version of your written advice

Authorisation Number: 1012737882249

Ruling

Subject: Residency for tax purposes

Question and answer

Are you a resident of Australia for taxation purposes?

No.

This ruling applies for the following periods:

Year ended 30 June 2013

Year ended 30 June 2014

Year ending 30 June 2015

The scheme commenced on:

1 July 2012

Relevant facts and circumstances

You were born in Australia and you are a citizen of Australia.

You are a permanent resident of Country Y.

You have been living and working in Country Y for a number of years.

You have now moved to Country Z for work purposes.

You have a permanent position in Country Z.

You hold a resident identity card and a work permit for Country Z.

At the end of your employment in Country Z you intend to return to Country Y to live.

You do not intend on returning to Australia to live.

Your family lived with you in Country Y.

Your family returned to Australia to live when you commenced working in country Z.

You live in a serviced apartment in Country Z.

You have overseas assets consisting of a bank account, shares and a car.

You have bank accounts in Australia.

You return to Australia for 3-4 weeks per year to visit your family.

You stay with your family when you return to visit them.

Neither you nor your spouse are currently or have ever been Commonwealth Government employees.

Relevant legislative provisions:

Income Tax Assessment Act 1997 Subsection 995-1(1).

Income Tax Assessment Act 1936 Subsection 6(1).

Reasons for decision

Section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997) provides that 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 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.

It is important to note that not one single factor is decisive and the weight given to each factor depends on individual circumstances.

You are a citizen of Australia and you were born in Australia.

You are a permanent resident of country Y.

You have been living and working in Country Y for a number of years. You have taken up a work contract in country Z.

You return to Australia for 3-4 weeks a year to visit your family.

You will return to Country y at the end of your work contract in country Z to live.

You do not intend on living back in Australia.

You do not maintain a home in Australia.

Based on the facts above 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.

Your domicile of origin is Australia.

You have permanent residency of Country Y.

Therefore your domicile of choice is Country Y and 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 are not in Australia for more than 183 days in any financial year.

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.

Neither you, nor your spouse, have ever been Commonwealth Government employees.

You are not a resident under this test.

Your residency status

You are not a resident of Australia for taxation purposes.