Edited version of your written advice

Authorisation Number: 1051413861276

Date of advice: 13 August 2018

Ruling

Subject: Residency

Question 1

Are you currently a non-resident of Australia for income tax purposes?

Answer

Yes

Question 2

Will you be a resident of Australia for income tax purposes from 20XX?

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 are an Australian citizen.

You have been living overseas since 20XX when you relocated to Country A.

Since 20XX you have lived in Country A, Country B and Country C, visiting Australia for short periods only.

The purpose of your trips back to Australia has mostly been for holidays and visiting relatives for short periods.

During the time you have spent overseas you have either been a full-time student or working with organisations outside of Australia.

You have a spouse, whom you met in 20XX in Country A.

You have two children who have been attending school in Country A.

You currently live with your spouse and children in Country A.

Your children are Australian citizens by descent and your spouse is a citizen of Country A who also holds an Australian spouse visa, which allows for permanent residency.

You have a number of siblings and a parent who all reside in Australia, whom you visit for brief periods in most years.

You also have extended family in Australia who you rarely visit.

You intend on coming to Australia in the next few months in order to prepare for you and your families permanent relocation to Australia in 20XX.

During the next few months, you will be in and out of Australia, and you intend on completing the following tasks prior to the permanent relocation in 20XX:

● Purchase a family home in which you and your family will live in.

● Transfer assets to Australia.

● Establish a business structure.

You do not currently own any real estate in Australia.

You hold other assets in Australia and overseas, mainly with financial institutions, however your assets are predominantly held outside Australia.

Neither you nor your spouse is 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)

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 until you permanently move to Australia with your family to live in 20XX.

Accordingly you are currently a non- resident of Australia for income tax purposes under section 995-1(1) of the ITAA 1997 and subsection 6(1) of the ITAA 1936.

Further, you will become 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 from 20XX.