| Disclaimer This edited version has been archived due to the length of time since original publication.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: 1051476425603
Date of advice: 14 March 2019
Ruling
Subject: Residency
Question
Are you a resident of Australia for income tax purposes?
Answer
No.
Having considered your circumstances as a whole and the residency tests, it is accepted that you are not a resident of Australia for income tax purposes. Further information on residency can be found by searching 'QC 33232' on ato.gov.au
This ruling applies for the following periods:
Year ended 30 June 20XX
Year ending 30 June 20XX
Year ending 30 June 20XX
The scheme commenced on:
1 July 20XX
Relevant facts and circumstances
General
You were born in Country X and you are also a citizen of that country.
In 20XX you migrated to Australia with your spouse and children. From the time you entered Australia you attained a permanent resident visa until 20XX when you became a citizen of Australia.
You have retained dual citizenship with Australia and Country X for business purposes and easy mobility between the two countries.
In 20XX you left Australia permanently with your spouse and children, returning to Country X to live.
You became a non-resident for taxation purposes from the 20XX-XX financial year onwards.
You permanently reside in Country X where you manage a substantial off-shore business.
Family and social connections
You have a spouse and children.
Your spouse was a non-resident of Australia for taxation purposes from 20XX to 20XX.
In 20XX your spouse returned to Australia on a permanent basis to for employment purposes, spending the first couple of years in an Australian city before moving to another Australian city in 20XX, where they currently reside. As such your spouse re-established themselves as a resident of Australia for taxation purposes from 20XX.
Your children also returned to Australia and moved to Australia in 20XX to attend high school, and they are now looking towards completing University studies. Your children currently reside in Australia.
You will be returning to Australia on a regular basis to visit your spouse and children, aiming to spend two to three weeks in Australia at a time. However you estimate that the total number of days you will spend in Australia will be approximately 100 days in each year.
You will also be financially supporting your spouse and children whilst you are living and working in Country X.
You have not developed or maintained any professional, social or sporting connections in Australia.
You have developed and maintained associations with various recreational organisations and institutions in Country X.
Accommodation and assets
In 20XX you purchased a block of land in Australia.
Following this, in 20XX you also purchased house and land in Australia, and you will be staying at this property during your planned visits back to Australia to visit your family.
You have a substantial home residence in Country X in which you reside in.
During the period when you were permanently living in Australia (20XX to 20XX) your parent lived in your property in Country X.
At all times during your planned visits back to Australia, your property in Country X will always be available for your use.
You own assets outside of Australia, including bank accounts, residential property, motor vehicles and other assets via your directorship of your Australian based company’s international group assets.
You have a personal bank account in Australia.
Income and employment
You own and operate a group of business principally based in Country X, that bank and trade through an Australian Company. The Australian Company is owned by the head Company in Country Y.
The company is a flow through company for buying international goods and then selling them to Companies based in Country X and Country Z, who then sell onto clients (International trade).
The Australian company is used for banking purposes, as the suppliers are happier to trade with an Australian company with Australian banking support.
You are a significant businessman in Country X, and you are also a member of the Country X Stock exchange board.
You are a tax resident of Country X and you lodge income tax returns in that country.
Neither you, or your spouse are eligible to contribute to the following Commonwealth superannuation funds, PSS or CSS.
Relevant legislative provisions
Income Tax Assessment Act 1936 Subsection 6(1)