Edited version of your written advice

Authorisation Number: 1012765730001

Ruling

Subject: Residence

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

Year ending 30 June 2016

Year ending 30 June 2017

Year ending 30 June 2018

The scheme commenced on:

1 July 2014

Relevant facts and circumstances

You were born in Country Y.

You are a citizen of Country Y.

You commenced working in Australia a number of years ago for an overseas company.

You entered Australia on a 457 visa.

You obtained a permanent residency visa a few years after arriving in Australia.

Your spouse and children came to Australia with you.

You and your family have now returned to Country Y to live.

You have a home in Country Y which you and your family live in.

All of your belongings have been returned to Country Y.

You have a property in another overseas country which is available for your use.

You have rental properties in Country Y.

You receive interest, dividend and rental income from Country Y.

You have no property in Australia.

You receive employment and interest income in Australia.

Your employer provides you with an apartment to live in while you are in Australia.

You will spend approximately 70 days working in Australia in each financial year.

You have a number of memberships in Country Y.

You have no memberships in Australia.

Neither you nor your spouse are currently or ever 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 and your family came to Australia for work purposes a number of years ago.

You and your family have now returned to Country Y to live.

You have a home in Country Y.

You have significant assets in Country Y.

You do not have a permanent home in Australia.

You will be in Australia for approximately 70 days for work purposes.

Based on the facts above you are not residing in Australia according to ordinary concepts.

The domicile test

If a person is considered to have their domicile in Australia they will be considered an Australian resident unless the Commissioner is satisfied they have a permanent place of abode outside of Australia.

In order to show that a new domicile of choice in a country outside Australia has been adopted, the person must be able prove an intention to make his or her home indefinitely in that country.

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.

Your domicile of origin is Country Y and your domicile of choice is Australia as you obtained permanent residency.

The Commissioner is satisfied that you have a permanent place of abode in Country Y for the following reasons:

• You are a citizen of Country Y

• Your family is in Country Y

• You have a home in Country Y

• You have significant assets in Country Y

• You are only in Australia for approximately 70 days for work purposes

Therefore 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 a 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.

You and your spouse have never been a Commonwealth Government employee.

You are not a resident under this test.

Your residency status

You are not a resident of Australia for taxation purposes.