Edited version of private advice

Authorisation Number: 1051704237404

Date of advice: 24 June 2020

Ruling

Subject: Residency

Question

Are you a resident of Australia for taxation purposes?

Answer

No

This ruling applies for the following periods:

Year ended 30 June 20XX

Year ended 30 June 20XX

Year ended 30 June 20XX

Year ending 30 June 20XX

Year ending 30 June 20XX

Year ending 30 June 20XX

The scheme commences on

4 May 20XX

Relevant facts and circumstances

You were born in Australia.

You are a citizen of Australia.

You moved to country A in 20xx.

You have a full-time employment in country A.

You had a work permit firstly and were given the residence visa shortly after arrival.

Your residence visa is renewed every X year based on your open-ended employment contract.

Your visa is supplied by your employer.

You are required to travel within country A.

Your spouse moved to country A to join you after.

You and your family rent an apartment.

You own a joint bank account in country A.

You have obtained your driver's licence and alcohol licence in country A.

You purchased a motor vehicle in country A.

You joined the local gym in country.

You have utility accounts and vehicle insurance in country A.

You have health insurance and life insurance in country A, which are covered by your employer.

You have made several short trips to Australia after first leaving to spend time with your spouse's family.

You and your spouse jointly own a rental property in Australia, which is managed by an Australian real estate agent.

You have notified your real estate agent that you were leaving Australia.

You have advised Australian bank about your non residency status.

You have cancelled your private health insurance in Australia.

You do not have any social or sporting connections with Australia.

You have advised the Australian Electoral Office to have your name removed from the electoral roll.

You have informed Medicare to have your name removed from their records.

You have never been a Commonwealth Government of Australia employee for superannuation purposes.

Relevant legislative provisions

Income Tax Assessment Act 1936 Subsection 6(1)

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

Reasons for decision

Section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997) defines an Australian resident for taxation 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', regarding 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 (and permanent place of abode) test,

·         the 183 day test, and

·         the superannuation test.

The first two tests are examined in detail in Taxation Ruling IT 2650 Income tax: residency - permanent place of abode outside Australia. Thelatter two tests are relatively self-explanatory as they require the individual to either be physical present in Australia for a period greater than 183 days or be eligible to contribute to the PSS or CSS superannuation schemes.

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 from the date your spouse departed Australia to join you.

Further information

The Commissioner does not rule for indefinite or extended periods of time as there may be changes to the facts of the arrangement or the law relating to residency. Also, a public ruling may issue which affects the private ruling. Therefore, we have ruled for the 20XXFY to 20XXFY.