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Edited version of your written advice
Authorisation Number: 1051294762192
Disclaimer
You cannot rely on this edited version in your tax affairs. You can only rely on the advice that we have given to you or to someone acting on your behalf.
The advice in the Register has been edited and may not contain all the factual details relevant to each decision. Do not use the Register to predict ATO policy or decisions.
Date of advice: 16 October 2017
Ruling
Subject: Residency
Question and answer
Are you a resident of Australia for taxation purposes?
No.
This ruling applies for the following periods:
Year ended 30 June 2017
The scheme commenced on:
1 July 2016
Relevant facts and circumstances
You are a country A citizen and country A is your country of origin.
You have had a domestic partner in Australia for a number of years.
You have a visa which is issued annually. This visa allows you to remain in Australia permanently.
You retired from your employment in country A.
You consider country A to be your home.
You support your parents and live in your parents’ home in country A.
You only spent a short time in Australia in this year
You and your partner own a main residence and some jointly owned rental properties in Australia. You have a joint account and an individual account with an Australian bank.
In country A you own a dwelling on your parents property, have a credit card, bank account and motor vehicle.
Your connection to Australia is your partner and friends.
Your connection to country A is your family, friends, working networks from past employment, membership of associations and you are currently assisting in organising an exhibition.
You are not eligible to contribute to the relevant Commonwealth super fund in Australia.
Relevant legislative provisions:
Income Tax Assessment Act 1997 Subsection 995-1(1).
Reasons for decision
Section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997) provides that where you are a resident of Australia for taxation purposes, your assessable income includes income gained from all sources, whether in or out of Australia. However, where you are a foreign resident, your assessable income includes only income derived from an Australian source.
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.
The definition offers four tests to ascertain whether each individual taxpayer is a resident of Australia for income tax purposes. These tests are the:
● resides test
● domicile and permanent place of abode test
● 183 day test and
● Commonwealth superannuation fund test.
The primary test for deciding the residency status of each individual is whether they reside 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 resides (ordinary concepts) test
The outcomes of several Administrative Appeals Tribunal (AAT) cases have determined that the word ‘resides’ should be given the widest meaning and there have been a number of factors identified which can assist in determining if a particular taxpayer is a resident of Australia under this test.
Recent case law decisions have considered the following factors in relation to whether the taxpayer was a resident under the ‘resides’ test:
(i) Physical presence in Australia
(ii) Nationality
(iii) History of residence and movements
(iv) Habits and "mode of life"
(v) Frequency, regularity and duration of visits to Australia
(vi) Purpose of visits to or absences from Australia
(vii) Family and business ties to different countries
(viii) Maintenance of place of abode.
These factors are similar to those which the Commissioner has said are relevant in determining the residency status of individuals in Taxation Ruling IT 2650 Income Tax: Residency - permanent place of abode outside Australia and Taxation Ruling TR 98/17 Income tax: residency status of individuals entering Australia.
It is important to note that not one single factor is decisive and the weight given to each factor depends on individual circumstances.
You are a country A citizen and country A is your country of origin.
You have had a domestic partner in Australia for the last 18 years.
You have a visa which is issued annually. This visa allows you to remain in Australia permanently.
You retired from your employment in country A.
You consider country A to be your home.
You support your parents and live in your parents’ home in country A.
You and your partner own a main residence and some jointly owned rental properties in Australia. You have a joint account and an individual account with an Australian bank.
You only spent a short time in Australia in this year
Your connection to country A is your family, friends, working networks from past employment, membership of associations and you are currently assisting in organising an exhibition.
Based on the above facts you were not residing in Australia according to ordinary concepts.
The domicile test
If a person’s domicile is Australia they will be considered an Australian resident unless the Commissioner is satisfied they have a permanent place of abode outside of Australia.
In order to show that a new domicile of choice in a country outside Australia has been adopted, the person must be able to prove an intention to make his or her home indefinitely in that country. The intention needs to be demonstrated in a legal sense, for example, by way of obtaining a migration visa, becoming a permanent resident or becoming a citizen of the country concerned.
Your domicile of origin is country A and your domicile of choice remained country A.
The expression 'place of abode' refers to a person's residence, where they live with their family and sleep at night. In essence, a person's place of abode is that person's dwelling place or the physical surroundings in which a person lives.
A permanent place of abode does not have to be 'everlasting' or 'forever'. It does not mean an abode in which a person intends to live for the rest of his or her life. An intention to return to Australia in the foreseeable future to live does not prevent the taxpayer in the meantime setting up a permanent place of abode elsewhere.
The Commissioner is satisfied that you had a permanent place of abode outside Australia.
The 183-day test
Where a person is present in Australia for 183 days during the year of income the person will be a resident, unless the Commissioner is satisfied that the person’s usual place of abode is outside Australia and the person does not intend to take up residence in Australia.
You were not in Australia for more than 183 days in the applicable financial year.
You are not a resident under this test.
The superannuation test
An individual is still considered to be a resident if that person is eligible to contribute to the PSS or the CSS, or that person is the spouse or child under 16 of such a person. To be eligible to contribute to those schemes, you must be or have been a Commonwealth Government employee.
You are not eligible to contribute to the relevant Commonwealth super fund.
You are not a resident under this test.