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Edited version of private advice
Authorisation Number: 1051613052631
Date of advice: 26 November 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 period:
Year ended 30 June 20XX
The scheme commenced on:
1 July 20XX
Relevant facts and circumstances
General
You and your spouse were born in Country A and you are also citizens of Country A, having lived there since birth.
You and your family were granted a temporary visa sub class 165 to Australia in late 20XX and you were all subsequently granted permanent residency visa to Australia in mid- 20XX.
Despite you holding permanent residency in Australia, you and your spouse have never had any intention of moving to Australia permanently, as you have been spending most of your time in Country A due to the requirement of managing and operating your business in that country.
Over the last few years you and your spouse have made several trips to Australia each year for the purpose of a holiday whilst visiting your two adult children who currently live and work in Australia. The total time you and your spouse spent in Australia each year, including the 20XX-XX year, was always less than 183 days.
The activities you will undertake whilst you are visiting Australia will generally include spending time with your adult children, shopping for groceries, taking casual walks and occasionally visiting your Australian friends.
Accommodation
You live in a residential property in Country A which is you and your spouse own, which you both consider to be your main residence.
You and your spouse acquired a residential rental property in Australia in 20XX.
You and your spouse also acquired another residential property in Australia in 20XX where your two adult children resided in whilst they completed tertiary studies in Australia, and one of your adult children has remained living in this property following the completion of their tertiary studies. Your other adult child has since relocated to a different city in Australia than the one where this residential property is situated to live and work.
During the times you and your spouse will be visiting your adult child that is living in your residential property, you will be staying in that property with them.
You and your spouse intend on transferring the two Australian residential properties into your children's name in the near future.
Assets
You and your spouse own motor vehicles and personal belongings in Country A.
Other assets held by you and your spouse in Country A include a company business ownership, shares, managed funds, bank accounts, a term deposit, life insurance policies and a block of land.
Your spouse also owns a commercial property in Country A which is leased to a business in Country A of which they own a half-share as a non-active business owner.
You and your spouse hold a joint bank account in Australia.
You and your spouse own a motor vehicle in Australia.
You do not hold any private health insurance in Australia.
Family and social connections
You have a spouse and two adult children.
Your daughter arrived in an Australian city in 20XX and they completed tertiary studies for one year as an international student, and they have remained living in Australia.
Your son arrived in in an Australian city in 20XX and they completed tertiary studies for one year as a local student, and they have remained living in Australia.
You hold memberships in local social clubs in Country A, where you utilise recreational facilities such as the swimming pool, gym, bar and restaurant a few times per month.
You also make use of your social club memberships in Country A by way of having dinner and drinks with business client's and associates along with family and friends.
You and your spouse regularly have gatherings with family and friends approximately three to four times a week in Country A.
You and your spouse do not participate in any community or social activities during your visits to Australia.
Employment
You own and operate a project advisory company business in Country A in equal shares with your spouse.
The company business commenced trading in 20XX and is still trading.
Both you and your spouse are not members of the Public Sector Superannuation Scheme (PSS) established under the Superannuation Act 1990.
Both you and your spouse are not eligible employees in respect of the Commonwealth Superannuation Scheme (CSS) which was established under the Superannuation Act 1976.
You are not a spouse or a child under 16 of a person who is a member of the PSS or is an eligible employee in respect of the CSS.
Relevant legislative provisions
Income Tax Assessment Act 1936 Subsection 6(1)