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Edited version of your written advice
Authorisation Number: 1051358022855
Date of advice: 6 April 2018
Ruling
Subject: Residency
Question:
Are you a resident of Australia for taxation purposes?
Answer:
No.
Relevant facts and circumstances
You were born overseas.
You have dual citizenship with Australia.
You intend to visit Australia on a temporary basis.
You do not intend to live in Australia on a permanent basis.
You intend to come to Australia for short periods at a time and then return to your home overseas.
You are retired.
Your stays in Australia will not exceed 6 months in any one financial year.
Relevant legislative provisions
Income Tax Assessment Act 1936 Subsection 6(1).
Income tax Assessment Act 1997 Section 6-5
Income Tax Assessment Act 1997 Subsection 995-1(1).
Reasons for decision
Subsection 995-1(1) of the Income Tax Assessment Act 1997 (ITAA 1997) defines an Australian resident as a person who is a resident of Australia for the purpose 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. These tests are:
1. the resides test
2. the domicile test
3. the 183 day test
4. the superannuation test
The first two tests are examined in detail in Taxation Ruling IT 2650.
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. However, where an individual does not reside in Australia according to ordinary concepts, they may still be considered to be an Australian resident for tax purposes if they satisfy the conditions of one of the three other tests.
The resides test
The ordinary meaning of the word 'reside', according to the Macquarie Dictionary, 2001, rev. 3rd 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'.
In your case, you do not intend to live permanently in Australia. You intend to come to Australia for short periods and you will not be in Australia for more than 6 months in any one financial year. As you will not be living in Australia on a permanent basis you would therefore not be residing in Australia according to ordinary concepts.
The domicile test
If a person is considered to have their domicile in 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.
In your case, you have not indicated an intention to make your home indefinitely in Australia and therefore you have maintained your domicile overseas. In addition, you have not established a permanent place of abode in Australia as:
● you do not intend to live in Australia on a permanent basis
● you consider the overseas country your home
● you will be making short visits to Australia
● you have a home overseas which you return to.
You are not a resident under this test.
The 183 day test
When 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 do not intend to be present in Australia for more than 6 months in any one 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 Public Service Superannuation Scheme (PSS) or the Commonwealth Superannuation Scheme (CSS), or that person is the spouse or child under 16 of such a person.
This test does not apply to you.
Your residency status
You are a non-resident of Australia for taxation purposes.