Edited version of private advice

Authorisation Number: 1051514057287

Date of advice: 20 May 2019

Ruling

Subject: Income tax - Residency

Question:

Are you a resident of Australia for income tax purposes?

Answer:

No. Based on the information provided, the Commissioner does not consider you a resident of Australia for taxation purposes in the relevant years. More information about working out your residency for tax purposes can be found by searching for "QC33232" 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 commences on:

1 July 20XX.

Relevant facts and circumstances

You were born in Country A, but had not lived there for more than a decade.

You have a house that is rented out for long-term rental, bank accounts and investments in Country A.

You moved to the Country B a number of years ago when you commenced employment with a former employer.

After being in Country B for a number of years, you commenced employment with your current employer, Organisation X.

At the time you commenced your employment with Organisation X, a new person had held a management position for a number of months. That person was removed, leaving the organisation without a person to fill that management position, which the organisation sought to fill.

Around the same time you obtained a Skilled Migration Visa (the Visa) for Australia with the duration of five years, with the condition that you were required to spend two consecutive years in Australia.

You decided not to apply for the management position with Organisation X due to the Visa being granted and had anticipated moving to Australia after a number of years to join your family. However, a number of months after the Visa was granted you were asked to take an acting management position at Organisation X while candidates were interviewed for final selection to fill the management position. You accepted the acting position and were approached by the Organisation X's board to accept the management role. You had indicated to Organisation X that you could not stay beyond the date that you had anticipated moving to Australia, which was accepted.

After a period of time Organisation X asked you to remain in the management position and you entered into an agreement with it that you would continue in that role for a longer period of time on the condition that you were granted extended leave to visit your family.

Your spouse and children moved to Australia.

You and your spouse jointly purchased the property in Australia (Family Home) where your family live.

You have experienced health issues for a number of years which has placed strain on your family. You and your spouse have decided that continuing the current arrangement is best for your family at this point even though it may cause issues with your visas.

You did not spend two consecutive years in Australia in accordance with the Visa conditions and have currently engaged the services of an immigration lawyer in relation to requesting an extension of time to meet your residency requirements in Australia as required by the Visa. The decision is currently pending, although it is your understanding that you will be granted a twelve month extension to meet the residency requirements and that you will have to be in Australia by a specified date during the 20XX-20XX income year.

If possible, you intend to apply for a further extension after the twelve month period with the plan to seek employment in Australia during a later income year.

Your employment contract with Organisation X is not time-limited and has an open term. Your ongoing employment is based on your performance and Country B's economic factors that affect the industry in which Organisation X operates.

You receive a salary and a housing allowance in relation to your employment at Organisation X. Your salary is paid into your bank account held in Country B.

You have leased your current apartment for more than 12 months, with the lease agreements being for periods of 12 months. You anticipate continuing to lease the same apartment during the period covered by this ruling. However if you are not able to continue leasing the apartment you will find another apartment to lease in the same area.

When you come to Australia you bring your laptop, iPad and clothing and stay at the Family Home with your family, which will occur in relation to your future visits.

You travel to Australia to visit your children, mostly to coincide with their birthdays and/or holidays.

You hold a number of bank accounts in Australia.

During the 20XX-XX income year you came to Australia on numerous occasions, with the total number of days spent in Australia being less than 183 days.

During the 20XX-XX income year you worked a small number of times in Australia for the purpose of maintaining your hands-on practice as required by your occupation.

At present, you have spent less than 100 days in Australia during the 20XX-XX income year. You currently have a booking to visit Australia for a short period of time prior to 30 June 20XX.

During the 20XX-XX income year you anticipate coming to Australia on a number of occasions, but will be in Australia for less than 183 days during that income year.

After each visit you returned to, or will return to, your permanent home in Country B.

You do not have any plans to relocate to Australia permanently.

Organisation X's management team manage the organisation while you are away. However, you attend meetings, review performance indicators and reports to assist you in preparing reports, and monitor emails on your laptop during your time in Australia.

You have permanent residency and a national identity card in Country B, which are valid for a number of years. Renewal for both is contingent on your ongoing employment contract and physical health. Your residency will be renewed prior to its expiry.

Neither you nor your spouse is eligible to contribute to the PSS or the CSS Commonwealth superannuation funds.

Relevant legislative provisions

Income Tax Assessment Act 1997 Subsection 995-1(1)

Income Tax Assessment Act 1936 Subsection 6(1)