Edited version of private advice

Authorisation Number: 1051526500675

Date of advice: 6 June 2019

Ruling

Subject: Residency

Question

Are you a resident of Australia for income tax purposes?

Answer

No.

This ruling applies for the following period:

Year ending 30 June 2019

Year ending 30 June 2020

Year ending 30 June 2021

Year ending 30 June 2022

The scheme commences on:

1 July 2018

Relevant facts and circumstances

You were born in country Y.

You are a citizen of country Y and Australia.

You commenced living and working in Australia in XXXX2011.

Your spouse and children accompanied you to Australia to live.

You terminated your employment in Australia in XXXXX 2019 to take up employment in country Z.

You left Australia on XX XXXXX 2019 for Country Z.

You will pay tax on your income in country Z.

You have accident and sickness cover provided by your employer in Country Z.

You have health cover in Country Z.

Your employer in Country Z is leasing a long term apartment for you as part of your remuneration until XX XXXXX 2021.

Your spouse and children remain in Australia.

Your spouse has always been the primary carer for the children and manages the day to day running of the household in Australia.

You have removed your name from the lease of your family home in Australia.

You have gifted your car to your spouse.

Your spouse will remain in Australia working and caring for your children.

Your spouse and children intend on relocating to country Z in 2020 once your child has completed their studies.

You have taken all personal items to Country Z.

You have arranged for your mail to be redirected to Country Z.

You have removed your name from the Australian electoral roll.

You have notified banks in Australia that you are a non-resident.

You will limit your visits back to Australia in 2019 to the school holidays.

You will not visit Australia in 2020.

You will maintain Australian health cover for your spouse and children.

You have ceased unnecessary social connections in Australia.

You and your spouse are not eligible to contribute to the PSS or the CSS super funds.

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 Australia for taxation purposes, your assessable income includes income gained from all sources, whether in or out of Australia. However, where you are a foreign resident, your assessable income includes only income derived from an Australian 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, we can conclude that you will not satisfy any of the tests of residency.

Accordingly you are not 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.