• Legal database
Legal database
Disclaimer
This edited version has been archived due to the length of time since original publication. It should not be regarded as indicative of the ATO's current views. The law may have changed since original publication, and views in the edited version may also be affected by subsequent precedents and new approaches to the application of the law.

You cannot rely on this record in your tax affairs. It is not binding and provides you with no protection (including from any underpaid tax, penalty or interest). In addition, this record is not an authority for the purposes of establishing a reasonably arguable position for you to apply to your own circumstances. For more information on the status of edited versions of private advice and reasons we publish them, see PS LA 2008/4.

Edited version of your written advice

Authorisation Number: 5010048025581

Date of advice: 11 January 2018

Ruling

Subject: Residency

Question

Are you a resident of Australia for income tax purposes?

Answer

Yes

This ruling applies for the following period:

Year ending 30 June 20XX

The scheme commences on:

XX/XX/XXXX

Relevant facts and circumstances

You were born in Australia.

You are a citizen of both Australia and Country Y.

You have been living in Country Y since marrying a number of years ago.

You and your partner have separated.

You had a home in Country Y with your former partner.

You have a home in Australia which your child and their family live in.

You have decided to return to Australia to permanently reside.

In the 20XX income year you have been in Australia for more than 183 days.

You will return to Country Y in early 20XX to stay with your child while they have a baby.

You will return to Australia in mth/year.

You will make future trips to Country Y to visit your child and grandchild which will be of a short duration.

You have a home, term deposit and bank account in Australia.

You have a 50% share in your home in country Y and receive a pension in Country Y.

You do not work in Australia.

You do not work in Country Y.

You are not eligible to contribute to the PSS or the CSS Commonwealth 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 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’, 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.

The first two tests are examined in detail in Taxation Ruling IT 2650 – Income tax: residency – permanent place of abode outside Australia. The latter 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 are a resident of Australia for income tax purposes.


Back to top