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Edited version of your written advice
Authorisation Number: 1051238120429
Date of advice: 15 June 2017
Ruling
Subject: Residence
Question
Are you a resident of Australia for income tax purposes?
Answer
No.
This ruling applies for the following period:
Year ended 30 June 2016
Year ending 30 June 2017
Year ending 30 June 2018
The scheme commenced on:
1 July 2015
Relevant facts and circumstances:
You were born in Australia.
You are a citizen of Australia.
You and your spouse have been living and working in Country Y since 200X.
You have had permanent residency of Country Y since 201X.
You have been a non-resident of Australia for taxation purposes for a number of years.
You have a permanent home in country Y.
In the 201X income year your spouse returned to Australia to care for their terminally ill parent.
It was your spouse’s intention to return to Country Y after your parent in-law passed.
On the same day your spouse’s parent died your spouse was diagnosed with a serious illness and they were not able to return to Country Y.
You visited your spouse and parent in-law while on leave from work in Country Y and these visits never exceeded 183 days prior to the 201Y income year.
You spent 294 days in Australia in the 201Y income year.
You spent 253 days to date in Australia in the 201Z income year.
You have been working your regular roster in Country Y for your employer up until recently when you were advised that your spouse could no longer be treated.
You were grounded from your job and are currently on leave with pay.
You will return to Country Y when your spouse passes.
You have a home to return to in Country Y.
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.
Based on the facts you have provided, we can conclude that you will not satisfy any of the tests of residency.
Accordingly you are not a resident of Australia for income tax purposes under section 995-1(1) of the ITAA 1997 and subsection 6(1) of the ITAA 1936.