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Edited version of private advice
Authorisation Number: 1051633415630
Date of advice: 12 February 2020
Ruling
Subject: Residency
Question 1
Are you a resident of Australia for income tax purposes from your departure?
Answer
No. Having considered your circumstances and the relevant factors, you are not a resident of Australia for income tax purposes under section 995-1(1) of the Income Tax Assessment Act 1997 (ITAA 1997) and subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936) as you have not met any of the tests required to be considered a resident of Australia.
Question 2
Are you required to lodge Australian income tax returns to declare your Australian sourced income from the rental property XXXX?
Answer
Yes. As advised above you are considered a non-resident of Australia for taxation purposes. Therefore you are required to declare your Australian sourced income in accordance with section 6-5(3) of the ITAA 1997 for the periods that the property received rental income. For all other income years where you did not receive Australian sourced income, you are required to advise us those returns are not necessary.
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
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
Year ending 30 June 20XX
Year ending 30 June 20XX
The scheme commences on:
1 July 20XX
Relevant facts and circumstances
You are an Australian and another country citizen and your country of origin is another country.
You have dependent children.
You departed Australia to take up an employment role in Country A.
You have obtained a Country A Working Visa when you commenced the employment contract.
Your spouse and dependent children also moved to Country A.
You are responsible for your own living expenses within Country A including your accommodation.
You divorced your spouse in XXXX.
Your dependent children stayed with you in Country A.
Your employer changed your Working Visa to a Residence Permit.
You have a driver's licence issued in Country A.
You travelled to other countries and returned to Australia.
You own Australian real property that was used to produce income from XXXX to XXXX.
One of your dependent children has moved back to Australia and now lives in the property.
You will return to Australia in XXXX.
Relevant legislative provisions
Income Tax Assessment Act 1936 subsection 6(1)
Income Tax Assessment Act 1997 Subsection 6-5(2)
Income Tax Assessment Act 1997 Subsection 6-5(3)
Income Tax Assessment Act 1997 Subsection 6-10
Income Tax Assessment Act 1997 subsection 995-1(1)