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Disclaimer
This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law.

You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4.

Edited version of your written advice

Authorisation Number: 1012913351396

Date of advice: 19 November 2015

Ruling

Subject: Residency for taxation purposes

Question and answer:

Were you a resident of Australia for taxation purposes between Date A and Date B?

No.

This ruling applies for the following period:

1 July 2014 to 30 June 2015.

The scheme commenced on:

1 July 2014.

Relevant facts and circumstances:

You were born in Country A.

You are a citizen of Country A.

You came to Australia and became an Australian citizen.

You have a spouse and children (your family).

You and your family left Australia.

You left Australia to take up employment in Country A and you and your family intended to permanently reside in Country A.

You sold your Australian home prior to leaving Australia.

Because of family circumstances you returned permanently to Australia.

You were a resident of Australia for taxation purposes prior to leaving Australia.

When you left Australia:

    • the majority of your and your family's Australian possessions were either sold or given away, except for clothes, manchester, crockery, and some personal items that were taken to Country A,

    • you stored some items for later shipping to Country A,

    • you gave your old motor vehicle to a relative,

    • you had your name removed from the Electoral Roll, and

    • you retained your Australia health insurance in the event there were any immigration issues.

You rented and furnished an apartment in Country A for the time you were there.

Relevant legislative provisions:

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

Income Tax Assessment Act 1936 Section 6(1).

Reasons for decision

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.

Based on the facts you have provided, you did not satisfy any of the tests of residency between Date A and Date B and were a non-resident of Australia for taxation purposes during that time.


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