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Edited version of private advice
Authorisation Number: 1051595339111
Date of advice: 17 October 2019
Ruling
Subject: Residency
Question
Are you a resident of Australia for income tax purposes?
Answer
No
This ruling applies for the following periods:
Year ending 30 June 20XX
Year ending 30 June 20XX
Year ending 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 Australia.
You are a citizen of Australia.
You have been a permanent resident of Country Y since 20XX.
You have worked in Country Y since 20XX.
You own a property in Country Y.
Your spouse and children will be moving to Australia to live.
You will remain in Country Y working and living.
You will visit your family in Australia and these visits will not exceed 183 days in any financial year.
You have various sporting connections in Country Y.
You have bank accounts, superannuation fund and a vehicle in Country Y.
You are not eligible to contribute to the PSS or the CSS Commonwealth Government superannuation 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 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.