| Disclaimer This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law. You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4. |
Edited version of your written advice
Authorisation Number: 1051430615763
Date of advice: 19 September 2018
Ruling
Subject: Residency for tax purposes
Question
Am I a resident of Australia for Tax purposes?
Answer
Yes
This ruling applies for the following period:
Year ending 30 June 2018
The scheme commences on:
1 July 2017
Relevant facts and circumstances
Your country of birth is country X.
You moved to Australia on a 444 Visa.
You have lived in Australia with your family for 17 years.
You worked for a company in Australia for a number of years.
You departed Australia take up a new job in country X.
Your final payment from your employer was made to you in the financial year of your departure.
An error was identified and a correction payment was made to you in the first week of the new financial year.
You have received a payment summary for the new financial year with that payment on it.
Relevant legislative provisions
Income Tax Assessment Act 1997 Subsection 995-1(1)
Income Tax Assessment Act 1936 Subsection 6(1)
Reasons for decision
Section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997) provides that where you are a resident of country Y for taxation purposes, your assessable income includes income gained from all sources, whether in or out of country Y. However, where you are a foreign resident, your assessable income includes only income derived from a country Y source.
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, the commissioner is satisfied that you had not severed your association with Australia until your family joined you in country x on the relevant date and therefore meet the resides test.
Accordingly you are 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.