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Edited version of your written advice
Authorisation Number: 1013093645034
Date of advice: 21 September 2016
Ruling
Subject: Residency status
Question and answer:
Are you a resident of Australia for income tax purposes?
No.
This ruling applies for the following period:
Year ended 30 June 20XX
Year ended 30 June 20XX
Year ended 30 June 20XX
Year ended 30 June 20XX
Year ended 30 June 20XX
The scheme commenced on:
1 July 20XX
Relevant facts and circumstances
Residency
You were born in County Z and are a citizen of Australia.
You have a spouse and dependants.
County Z
You secured fulltime employment in County Z.
You departed Australia and entered County Z on a visa that allowed you to stay for a number of years. A further number of years are granted upon renewal.
Your spouse and dependants departed Australia to join you in County Z after a number of months.
When departing Australia you had no intention of returning in the near future, but did not intend to make your home indefinitely outside of Australia.
Upon your arrival in County Z you secured a long term rental apartment, purchased white goods, electronic appliances, furniture, and a motor vehicle. You also opened County Z bank accounts.
Prior to your departure you lived in your own home. This home is now being occupied by your relatives.
Since your departure you have only returned on one occasion for a short period to visit family.
Your assets in Australia consist of your family home, bank accounts and superannuation fund.
You disposed of old items and left the rest at your family home.
You have not received any Australian sourced income since your departure from Australia.
While in County Z you acquired a driver's licence
After a number of years you and your family moved to Country T.
Country T
You secured fulltime employment in Country T.
You entered the Country T on a visa that allowed you to remain in Country T for a number of years. This visa can be renewed indefinitely.
On arrival in Country T you and your family were provided with corporate housing for a short period, before attaining rental accommodation on an extended lease.
Your assets in Country T consist of a bank account, restricted stock units from your employer and a motor vehicle.
Your social and sporting ties in the Country T consist of a religious group and work colleagues.
While in Country T you acquired a driver's licence.
Neither you nor your spouse has ever an employee of the Commonwealth Government of Australia.
Since your arrival in Country T you have not returned nor do you have any intention to return to Australia.
Relevant legislative provisions
Income Tax Assessment Act 1997 Subsection 995-1(1).
Income Tax Assessment Act 1936 Subsection 6(1).
Income Tax Assessment Act 1997 Subsection 6-5(2).
Reasons for decision
Residency
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 (and permanent place of abode) test,
• the 183 day test, and
• the superannuation test.
The first two tests are examined in detail in TAXATION RULING NO. IT 2650 INCOME TAX: Residency - Permanent Place Of Abode Outside Australia.
The latter two tests are relatively self-explanatory as they require the individual to either be physical present in Australia for a period greater than 183 days or be eligible to contribute to the PSS or CSS superannuation schemes.
An individual need only satisfy the conditions of one of the four tests to be deemed a resident of Australia for income tax purposes.
Based on the information that you have provided you and your family had dwelled in Country Z and will dwell in the Country T for a considerable period of time. Although your domicile of choice has and will remain Australia, the Commissioner is satisfied that you had established a permanent place of abode in Country Z, and will do so in Country T. You will not be physically present in Australia for a period of greater than 183 days in any of the income years included in this ruling. Finally, neither you nor your spouse has ever been an employee of the Commonwealth Government of Australia.
Therefore you do not satisfy any of the 4 tests for residency.
Accordingly as you have not satisfied any of the 4 tests for residency, you are not a resident of Australia for income tax purposes for the income years included in this ruling under subsection 6(1) of the ITAA 1936 and subsection 995-1(1) of the ITAA 1997.