Edited version of private advice

Authorisation Number: 1051528201388

Date of advice: 11 June 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 ending 30 June 20XX

Year ending 30 June 20XX

Year ending 30 June 20XX

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances

You were both (applicant 1 and applicant 2) born in Australia and you are Australian citizens.

You have both lived the entirety of your lives in Australia.

You both departed Australia in early 20XX for Country Y to live, where applicant 1 is beginning a two year fixed term appointment as an employee with an organisation based in the Country Y.

Applicant 1's fixed term appointment with the organisation ends in early 20XX, with a possibility of extension or further employment based on performance, however you both intend on returning to Australia to live immediately after the end of applicant 1's appointment.

You have each been granted a visa which allows you to reside in the Country Y for as long as applicant 1 is employed by the organisation.

You have both informed the Australian Electoral Commission about your move to Country Y.

You have both cancelled your private health insurance cover.

You will both continue to lodge Australian income tax returns whilst you are living in the Country Y, as you will each have rental income to declare as Australian source income.

You will both be renting an apartment in a major city in Country Y during the time you are living in the Country Y.

Part of the rent is subsidised by the organisation applicant 1 will be working for.

You have both signed a lease agreement to rent the apartment in Country Y, which ends in early 20XX, which was the closest date you could negotiate your intended return to Australia.

You were both previously renting a house in Australia, and both of you also own a residential property in Australia that is currently being rented out.

You purchased the Australian property in mid-20XX with the intention of making it your primary residence, however this was put on hold when applicant 1 was offered the position in Country Y.

Upon your return to Australia in early 20XX, you both intend of living in the Australian property and making it your main residence.

You have opened a joint bank account in Country Y.

Applicant 1 will have part of their salary paid into a Staff Pension Fund, which is a mandatory.

You have both shipped over a small amount of your personal items such as photo albums, your child's toys, kitchen goods and clothes.

Whilst you have been living in Country Y, you have purchased beds, bed side tables, sets of drawers clothing, living room furniture, dining tables and chairs, and some decorative items for the apartment you are renting in Country Y.

You do not own any other significant assets overseas.

You have both maintained bank accounts, superannuation accounts and a home loan in Australia.

You have stored the majority of your furniture in Australia, owned by both of you, which is intended for your use when you return.

You have both advised Australian Financial Institutions that you will be moving overseas.

You are each other's spouse, and you have a young child, who has travelled to Country Y with you.

Your child has enrolled to attend school in Country Y, and you are going to arrange for your child to attend a school in Australia following your expected return in 20XX.

Applicant 1 will remain a member of an Australian professional organisation, and they plan on attending events this organisation holds in Country Y.

You will both remain connected to Australian family and friends, and applicant 2 remains in regular contact with their Australian work colleagues.

You both intend on making social connections in the Country Y through applicant 1's work, and your child's school.

You have no plans to join any Country Y based professional or sporting associations.

You were both Commonwealth Government employees in Australia since early in 20XX.

You were both employed on a permanent basis and you are both members of the Public Sector Superannuation Accumulation Plan (PSSAP).

Applicant 2 has taken long term leave without pay from their full-time role with an Australian Federal Government Department until early in 20XX.

Applicant 1 applied for long term leave without pay from their role with the Federal Government of Australia, however this was not approved. As such they resigned from that role, but they retained another employment position in Australia.

Applicant 1s income is not required to be reported on Country Y income tax return for non-residents.

If applicant 2 finds employment in Country Y, they will lodge a Country Y income tax return as a non-resident.

Relevant legislative provisions

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

Income Tax Assessment Act 1936 Subsection 6(1)