Edited version of your written advice

Authorisation Number: 1012879229937

Date of advice: 29 September 2015

Ruling

Subject: Temporary residency

Questions and answers:

1. Are you a temporary resident of Australia for tax purposes?

Yes.

2. Is your foreign income assessable in Australia?

No.

This ruling applies for the following period:

1 July 2009 to 30 June 2010

1 July 2009 to 30 June 2011

1 July 2009 to 30 June 2012

1 July 2009 to 30 June 2013

1 July 2009 to 30 June 2014

1 July 2009 to 30 June 2015

1 July 2009 to 30 June 2016

1 July 2009 to 30 June 2017

The scheme commenced on:

1 July 2009.

Relevant facts and circumstances

You are a citizen of a foreign country.

You arrived in Australia in on a visa.

While living in a foreign country, you and your spouse purchased two dwellings, one as your main residence and one as an investment property. Both of your foreign country dwellings are rented to tenants.

You have not applied for a permanent residency visa. You are uncertain if you will return to a foreign country.

You and your spouse purchased a house in Australia soon after your arrival. You found it unsuitable and sold it. Since then you have lived in a rented property. You want to purchase a dwelling that is more suited to your needs but you will need to sell one or both of your a foreign country propertied to fund the purchase.

You consider yourself to be a resident of Australia for taxation purposes and have lodged tax returns since arriving. Previous advice you have received was that you should declare all world-wide income. You state that you are a temporary resident for taxation purposes and that you are not required to declare foreign source income, that is, rental income and capital gains earned from your foreign country rental properties.

Neither you nor your spouse is an Australian resident within the meaning of the Social Security Act 1991.

Relevant legislative provisions:

Income Tax Assessment Act 1936 Subsection 6(1)

Income Tax Assessment Act 1997 Section 6-5

Income Tax Assessment Act 1997 Section 6-10

Income Tax Assessment Act 1997 Section 6-15

Income Tax Assessment Act 1997 Section 768-910

Income Tax Assessment Act 1997 Section 768-915

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

Reasons for decision

Assessable income and residency for taxation purposes - general

As a general rule, the assessable income in Australia of an individual who is a resident of Australia for taxation purposes will include all the ordinary and statutory income they earn from all sources, in and out of Australia.

Rental income is a form of ordinary income.

Capital gains are a form of statutory income.

Although an individual may be a resident of Australia for taxation purposes he or she may also be a temporary resident for taxation purposes at the same time. Where this is the case, the temporary resident provisions of Australia's tax law may operate to exclude certain foreign source income of the individual from being assessable in Australia.

Residency for taxation purposes

Section 995-1 of the Income tax Assessment Act 1997 (ITAA 1997) defines an Australian resident for tax purposes 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. The definition provides four tests to ascertain whether a taxpayer is a resident of Australia for income tax purposes. The tests are:

• the resides test,

• the domicile test,

• the 183 day test, and

• the superannuation test.

If any one of these tests is met, an individual will be a resident of Australia for taxation purposes.

The resides test is the primary test for determining the residency status of an individual for taxation purposes. If residency is established under the resides test, the remaining three tests do not need to be considered.

The resides test considers whether an individual is residing in Australia according to the ordinary meaning of the word 'reside' which is not defined in Australian taxation law.

In Dempsey and Commissioner of Taxation [2014] AATA 335 (29 May 2014) the Administrative Appeals Tribunal noted that the settled position of the courts (at ultimate appellant level) as to the meaning of the word resides for the purposes of subsection 6(1) of the ITAA 1936 is that the word:

bears its ordinary English meaning, which is "to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place".

Based on the facts you have provided, we consider you are residing in Australia according to the ordinary meaning of the word and are therefore a resident of Australia for taxation purposes under this test. As a consequence, the remaining tests of residency do not need to be considered in your case.

Temporary residency for taxation purposes

An individual who is a resident of Australia for taxation purposes will also be considered a temporary resident for taxation purposes if:

• they hold a temporary visa granted under the Migration Act 1958, and

• they are not an Australian resident within the meaning of the Social Security Act 1991, and

• they do not have a spouse who is an Australian resident within the meaning of the Social Security Act 1991.

The Social Security Act 1991 defines an Australian resident as a person who resides in Australia and is an Australian citizen, the holder of a permanent visa, or a special visa holder who was in Australia on or before 26 February 2001.

Only a foreign country citizen with a valid a foreign country passport can be issued a special visa.

Based on the facts you have provided you are a temporary resident of Australia for taxation purposes because:

• you hold a temporary visa issued under the Migration Act 1958, and

• neither you nor your spouse are Australian residents within the meaning of the Social Security Act 1991.

Temporary residents and assessable income

Subdivision 768-R of the ITAA 1997 provides an exemption for most foreign income derived by individuals who are temporary residents of Australia for taxation purposes. This exemption is explained in part by the following extract from Paragraph 1.23 of the Explanatory Memorandum to the Tax Laws Amendment (2006 Measures No. 1) Bill 2006:

This Bill makes ordinary income derived from a foreign source during the period the taxpayer is a temporary resident non-assessable non-exempt income. This measure also applies to all statutory income that has a source other than Australia……… on which the taxpayer would otherwise be taxed.

Income that is non-assessable, non-exempt income is not assessable income under the provisions of subsection 6-15(3) of the ITAA 1997.

Section 768-910 of the ITAA 1997 provides that ordinary income (such as rental income) and statutory income (with the exception of net capital gains) derived by a temporary resident from sources outside Australia are non-assessable, non-exempt income.

Capital gains or losses made by a temporary resident are specifically dealt with by section 768-915 of the ITAA 1997. In simple terms, the effect of section 768-915 of the ITAA 1997 is that temporary residents are subject to the same capital gains tax (CGT) rules as foreign residents. This means that if you are a temporary resident, you can disregard (and therefore exclude from your assessable income in Australia) any gain or loss made from a CGT event that is not taxable Australian property.

Conclusion

Based on the facts you have provided you are both a resident and temporary resident of Australia for taxation purposes. Because you are a temporary resident for taxation purposes your assessable income in Australia does not include the rental income and capital gains you make from your properties in a foreign country.