Edited version of your written advice

Authorisation Number: 1013051619572

Date of advice: 13 July 2016

Ruling

Subject: Residency

Question 1

Are you an Australian resident for income tax purposes?

Answer

Yes.

Question 2

Are you a temporary resident of Australia for income tax purposes?

Answer

Yes.

This ruling applies for the following periods:

Year ended 30 June 2015

The scheme commences on:

1 July 2014

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 are a citizen of Country A.

You are a holder of a Special Category Visa (SCV) which allows you the right to remain indefinitely in Australia and to work without restrictions as long as you remain a Country A citizen.

You entered Australia in 20XX.

You have not applied for Australian citizenship.

You left Australia in early 20YY to return to Country A for a funeral. You intended to return to Australia after the funeral however due to your parent's injury you did not return to Australia until late 20YY.

You own a motor vehicle in Australia.

You live in Australia.

You lived with your family while in Country A.

Your family has not joined you in Australia.

You were employed in Australia prior to returning to Country A for the funeral.

You have a superannuation account in Australia.

Relevant legislative provisions

Income Tax Assessment Act 1936 Subsection 6(1) and

Income Tax Assessment Act 1997 Section 995-1.

Reasons for decision

Residency

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 (ITAA 1936). The definition provides four tests to ascertain whether a taxpayer is a resident of Australia for income tax purposes. These tests are:

• the resides test.

• the domicile test.

• the 183 day test.

• the superannuation test.

The primary test for deciding the residency status of an individual is whether the individual resides 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 ordinary meaning of the word 'reside', according to the Macquarie Dictionary, 2001, rev. 3^rd edition, The Macquarie Library Pty Ltd, NSW, is 'to dwell permanently or for a considerable time; having one's abode for a time', and according to the Compact Edition of the Oxford English Dictionary (1987), 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'.

Taxation Ruling TR 98/17 considers the residency status of individuals entering Australia and states that the period of physical presence or length of time in Australia is not, by itself, decisive when determining whether an individual resides here. However, an individual's behaviour over the time spent in Australia may reflect a degree of continuity, routine or habit that is consistent with residing here.

In your case, it is considered that you are an Australian resident for tax purposes under 'the resides test' for the following reasons:

• since 20XX, you have been residing in Australia.

• you are staying in long-term accommodation while living in Australia; and

• you were working in Australia.

Based on the information you have provided, it is considered that you are an Australian resident for income tax purposes from the date you entered Australia, as your behaviour in Australia reflects a degree of continuity, routine or habit that is consistent with residing here.

Temporary resident

A temporary resident as defined in subsection 995-1(1) of the Income Tax Assessment Act 1997 (ITAA 1997) is a person:

• who holds a temporary visa granted under the Migration Act 1958, and

• who is not an Australian resident within the meaning of the Social Security Act 1991, and

• whose spouse is not an Australian resident within the meaning of the Social Security Act 1991.

The Migration Act 1958 provides that a temporary visa is a visa to travel to and remain in Australia:

• during a specified period,

• until a specified event happens, or

• while the holder has a specific status.

Temporary visas are distinguished from permanent visas which allow a person to remain in Australia indefinitely.

Under the Social Security Act 1991, an Australian resident is a person who resides in Australia and is either an Australian citizen or holds a permanent resident visa. Country A citizens who hold a SCV and were in Australia on 26 February 2001, or were outside Australia on 26 February 2001, but present in Australia as an SCV holder for at least one year in the two years prior to that date, are also considered to be Australian residents for the purposes of the Social Security Act 1991.

In your case:

• you have a temporary SCV granted by the Department of Immigration and Multicultural Affairs and

• you are not an Australian resident within the meaning of the Social Security Act 1991 because you are not an Australian citizen or hold a permanent resident visa.

As you satisfy the conditions for a temporary resident as defined in subsection 995-1(1) of the ITAA 1997, you are considered to be a temporary resident of Australia for income tax purposes.