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Edited version of your written advice
Authorisation Number: 1013008242990
Date of advice: 6 May 2016
Ruling
Subject: Residency
Question 1
Are you a resident of Australia for tax purposes for the period 1 July 20XX to 30 June 20XX?
Answer
No.
This ruling applies for the following periods:
Year ending 30 June 20XX
Year ending 30 June 20XX
Year ending 30 June 20XX
The scheme commences on:
1 July 20XX
Relevant facts and circumstances
This ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are materially different from these facts, this ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.
You left Australia to commence employment in Country X on 1 July 20XX.
You were initially employed under a less than two year contract but formed the intention to stay indefinitely soon after arrival. The contract was then extended until 30 June 20XX.
Your spouse joined you in Country X a period of time after you left.
You have spent a short amount of time in Australia since leaving.
Your main residence had been tenanted.
You had no other assets within Australia.
You have adult children in Australia.
Relevant legislative provisions
Income Tax Assessment Act 1997 Subsection 995-1(1)
Income Tax Assessment Act 1936 Subsection 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.
Where a taxpayer has immediate family in Australia and has maintained assets in Australia, under these circumstances they would be considered a resident of Australia for taxation purposes because they either meet the domicile and or the resides test(s) under subsection 6(1) of the ITAA 1936.
In your circumstances, from the date that your spouse joins you in Country X you will not meet the requirements of any of the residency tests.
The 183 day test and the superannuation test do not apply to you as you will not have been in Australia for 183 days in any of the proposed periods nor are you an eligible member of the Public Service Superannuation Scheme (PSS) or the Commonwealth Service Superannuation Scheme (CSS).
Accordingly for the period 1 July 20XX to 30 June 20XX you are not a resident of Australia for the purpose of taxation.