Edited version of your written advice

Authorisation Number: 1051343973365

Date of advice: 16 March 2018

Ruling

Subject: Residency for taxation purposes

Question 1

Were you a resident of Australia for taxation purposes for the period XX XX 2017 to XX XXX 2018??

Answer

Yes

Question 2

Are you a resident of Australia for taxation purposes from XX XXXX 2018?

Answer

No

This ruling applies for the following periods:

Year ending 30 June 2017

Year ending 30 June 2018

Year ending 30 June 2019

Year ending 30 June 2020

Year ending 30 June 2021

The scheme commenced on:

1 July 2017

Relevant facts and circumstances

You were born in Australia.

You are a citizen of Australia.

You have been working in Country Y since the 2017 income year.

This employment can be extended.

Your spouse and child joined you in Country Y in the 2018 income year.

You and your spouse intend on being in Country Y for the next 5 years at which point you will return to Australia.

You have a work visa for Country Y.

You and your spouse have a rental property in Country Y and the lease can be extended.

You and your spouse intend on returning to Australia for visits two to three times a year for 2-3 weeks at a time.

You will not be in Australia for more than 183 days in any financial year while you are living and working in Country Y.

You will stay in a rented apartment when you are in Australia.

You have stored your household items in Australia.

You do not own any properties in Australia.

You have purchased furniture in Country Y.

You have a bank account in Australia.

You have dependent children who are living with their parent in Australia.

You have suspended your health insurance in Australia.

You have notified the electoral commission that you are overseas.

Neither you nor your spouse are eligible to contribute to the relevant Commonwealth superannuation funds.

Relevant legislative provisions:

Income Tax Assessment Act 1936 Subsection 6(1)

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 IT 2650 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 went to Country Y in the 2017 income year to live and work.

Your spouse and child joined you in Country Y in the 2018 income year.

In the recent case of Iyengar v FCT 2011 ATC 10-222, the Administrative Appeals Tribunal held that the taxpayer was a resident of Australia, even though he was working overseas. The taxpayer's family ties, his intention (to complete his contract) and motive (to pay off his mortgage), and his maintaining an Australian place of abode while working overseas, were all indicative that he was an Australian resident during the relevant period.

Based on the facts above you were residing in Australia according to ordinary concepts for the period XX XX 2017 to XX XXX 2017 as you retained a continuity of association with Australia as your spouse and child remained in Australia.

Until XX XX 2017 at which point they left Australia to join you in Country Y.

You were a resident of Australia for taxation purposes for the period XX XX 2017 to XX XXX 2017.

From XX XX 2017 you were not a resident of Australia for taxation purposes as your continuity of association with Australia was such that you no longer were a resident for taxation purposes.

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 prove an intention to make his or her home indefinitely in that country.

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.

Your domicile of origin is Australia.

The Commissioner is satisfied that you had a permanent place of abode outside Australia for the following reasons:

● You went to Country Y for work purposes

● You live in rented accommodation in Country Y

● Your family joined you in Country Y in the 2018 income year

You are not a resident under this test from XX XXX XXX.

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 will not be in Australia for more than 183 days for the period you are living and working in Country Y.

You are not a resident under this test from XX XXX XXX.

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 and your spouse are not eligible to contribute to the relevant Commonwealth super fund.

You are not a resident under this test.

Your residency status

You were a resident of Australia for taxation purposes for the period XX XX 2017 to XX XXX 2017.

You are not a resident of Australia for taxation purposes from XX XXX 2017.

ATO view documents

Taxation Ruling TR 98/17

Taxation Ruling IT 2650