Edited version of your written advice

Authorisation Number: 1051367046363

Date of advice: 27 April 2018

Ruling

Subject: Residency

Question

Are you a resident of Australia for income tax purposes?

Answer

Yes

This ruling applies for the following period:

Year ended 30 June 20XX

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances

You were born in Country A and you are a citizen of that country.

You arrived in Australia in 20XX with the intention of staying in Australia permanently. You have been living with your spouse who is an Australian citizen and an Australian resident for taxation purposes.

You were initially granted a temporary visa upon your arrival in Australia, and you have now attained permanent residency.

You had previously entered Australia during the period 20XX to 20XX, where you completed studies and also met your current spouse. You were visiting Australia on a different type of temporary visa at that time.

Since arriving in Australia in 20XX you have made a few trips overseas for various reasons. One of your trips overseas was for an extended period, in order to receive support from your family whilst you gave birth to your child.

During all of these overseas trips you have remained in a relationship with your spouse.

You have children.

You are active in an Australian Church group.

You do not own any property or assets overseas.

You maintain a bank account in Australia.

You do not receive income from any overseas sources.

You do not have any overseas employment.

You have held Australian employment for one year which could have been extended indefinitely.

Neither you nor your spouse are a Commonwealth of Australia Government employee for superannuation purposes.

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.

An individual need only satisfy the conditions of one of the four tests to be deemed a resident of Australia for income tax purposes.

The resides test

The resides test considers whether an individual is residing in Australia according to the ordinary meaning of the word ‘reside’. As the word ‘reside’ is not defined in Australian taxation law, it takes its ordinary meaning for the purposes of subsection 6(1) of the ITAA 1936.

The ordinary meaning of the word 'reside', according to the Macquarie Dictionary, 2001, rev. 3rd edition, 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 initially arrived in Australia on a temporary visa in 20XX, where you had the intention of living in Australia permanently with your Australian spouse.

● you have since attained permanent residency of Australia.

● During the periods you spent outside of Australia you maintained a strong connection with Australia via your Australian spouse.

Based on the facts of your case, you are residing in Australia according to the ordinary meaning of the word. Therefore you are a resident of Australia under this test.

Your residency status

In view of the above, the Commissioner considers that your behaviour in Australia reflects a degree of continuity, routine and habit that is consistent with residing here.

As you meet the resides test, you are a resident of Australia for income tax purposes under subsection 6(1) of the ITAA 1936.