Edited version of your written advice

Authorisation Number: 1012741590021

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 ending 30 June 2015

The scheme commenced on:

1 July 2014

Relevant facts and circumstances

You were born in an overseas country.

You are a citizen of Australia.

You have gone to Country Y to live and work.

You have a work contract in Country y for two years which can be extended.

You have a work visa and resident permit for Country Y.

Your X dependent children will accompany you to Country Y.

You do not have a spouse.

You will ship your furniture and other personal belongings to Country Y.

You intend on being in Country Y on a permanent basis.

You have no intentions on returning to Australia.

You have investment properties and bank accounts in Australia.

You have a bank account in Country Y.

You will rent out your family home in Australia.

You have notified the electoral office, banks and other relevant authorities that you are moving to Country Y and will be a non-resident.

The only social connections you have in Australia relate to church activities.

You are involved in a number of social activities and groups in Country Y such as a parent group, school sports, work social club and church activities.

You have never been a Commonwealth Government employee.

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 an overseas country.

You have gone to Country Y to live and work on a permanent basis.

You have a work visa and resident permit for Country Y.

Your children have accompanied you to Country Y. You do not have a spouse.

You are renting out your home in Australia.

You have no intentions on returning to Australia.

You will move all your furniture and belongings from Australia to Country Y.

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 an overseas country and your domicile of choice is Australia.

The expression 'place of abode' refers to a person's residence, where they live with their family and sleep at night.  In essence, a person's place of abode is that person's dwelling place or the physical surroundings in which a person lives.

A permanent place of abode does not have to be 'everlasting' or 'forever'. It does not mean an abode in which a person intends to live for the rest of his or her life.  An intention to return to Australia in the foreseeable future to live does not prevent the taxpayer in the meantime setting up a permanent place of abode elsewhere.

The Commissioner is satisfied that you have set up a permanent place of abode outside Australia for the following reasons:

• You are taking all your furniture and belongings to Country Y

• You are moving to Country Y on a permanent basis

• You do not intend on returning to 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 will not be in Australia for more than 183 days in any financial year after you commence your work contract in Country Y.

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 have never been or are currently a commonwealth employee.

You are not a resident under this test.

Your residency status

You are not a resident of Australia for taxation purposes.