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Edited version of your written advice
Authorisation Number: 1012880693523
Date of advice: 17 September 2015
Ruling
Subject: Residency
Question and answer
Are you a resident of Australia for taxation purposes?
Yes.
This ruling applies for the following periods:
Year ended 30 June 2013
Year ended 30 June 2014
Year ended 30 June 2015
Year ending 30 June 2016
The scheme commences on:
1 July 20XX
Relevant facts and circumstances
You are a citizen of Country Y.
You arrived in Australia a number of years ago.
You have a multiple entry student visa.
You are not currently working in Australia.
You are currently studying in Australia.
You intend on remaining in Australia at the end of your studies.
You do not intend on returning to Country Y.
Your parent remains in Country Y.
You have a spouse in Australia who you live with.
You have health insurance in Australia.
You have a bank account and a mobile phone account in Australia.
You have continued to pay rent on your apartments when you have been out of Australia.
You have been in Australia for more than 183 days in the XXXX and XXXX income years.
Relevant legislative provisions
lncome Tax Assessment Act 1997 Subsection 995-1(1).
Reasons for decision
Section 6-5 of the lncome 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 lncome lax 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. lf 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 Taxation Ruling IT 2650 lncome Tax: residency - permanent place of abode outside Australia and Taxation Ruling TR 98/17 lncome 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 came to Australia a number of years ago.
You are a student.
You have a multiple entry visa for Australia.
You do not intend on returning to Country Y.
You intend on remaining in Australia at the end of your study.
You live with your Australian spouse in Australia.
You have health insurance in Australia along with a bank account and a mobile phone account.
Based on the facts above you are residing in Australia according to ordinary concepts.
You are a resident under this test.
Your residency status
You are a resident of Australia for taxation purposes.