Edited version of private advice

Authorisation Number: 7910149377459

Date of advice: 11 April 2022

Ruling

Subject: Residency and income

Question one

Are you a 'temporary resident' under the Income Tax Assessment Act 1997?

Answer

Yes. You are a temporary resident because:

•                    you are not an Australian resident within the meaning of the Social Security Act 1991 as you are not an Australian citizen, the holder of a permanent visa, or a protected special category visa holder;

•                    you hold a temporary visa granted under the Migration Act 1958

•                    you are not an Australian resident within the meaning of the Social Security Act 1991, and

•                    you do not have a spouse who is an Australian resident within the meaning of the Social Security Act 1991.

Question two

Does section 99B of the Income Tax Assessment Act 1936 apply to you if you receive capital distributions from the New Zealand trusts that are attributable to a source outside Australia?

Answer

No. As you are a temporary resident of Australia for taxation purposes, any capital distributions from the trusts in New Zealand will be exempt from income tax in Australia under section 768-910 of the Income Tax Assessment Act 1997.

This ruling applies for the following periods:

•                    Year ending 30 June 2022

•                    Year ending 30 June 2023

•                    Year ending 30 June 2024

•                    Year ending 30 June 2025

The scheme commences on:

1 July 2022

Relevant facts and circumstances

You were born in Country Y.

You are a citizen of Country Y.

You are not a citizen of Australia.

You are not a permanent resident of Australia.

You do not have a spouse.

You do not intend on becoming a citizen of permanent resident of Australia.

You hold a Country Y passport.

You enter Australia on your Country Y passport.

You have travelled to Australia intermittently since 20XX.

You arrived in Australia in May 20XX with the intention of remaining in Australia permanently, but may return to Country Y in the future.

You will not change your Australian visa status, become a permanent resident or become an Australian citizen in the future.

You were not in Australia on XX February 20XX or for periods totalling 12 months during the two years immediately before that date.

You have never been granted social security payments on the basis of being a protected SCV holder.

You presented a current Country Y passport to a Customs officer upon your first arrival in Australia.

You presented a current Country Y passport to a Customs officer or the Smartgate system subsequently when you re-entered Australia after periods of absence from Australia.

You are not a 'behaviour concern non citizen' as you have not:

•                    Been charged with or convicted of a crime

•                    Been removed or deported from Australia or another country

•                    Been excluded from another country; and

You are not a 'health concern non citizen' as you do not have tuberculosis.

You are a discretionary beneficiary of various Country Y trusts (the Trusts).

The trusts were established in Country Y in 20XX and 19XX respectively.

No trustees are, or will be in each of the income years that this private ruling relates to, an Australian resident.

The central management and control of each of the Trusts is, and will be in each of the income years that this private ruling relates to, outside of Australia.

Most of the income of the Trusts has a foreign source. Both trusts have Australian listed company share investments as part of their total share portfolio, which produces Australian dividend income.

The property of the Trusts has never included Australian real property or other Australian assets - however, both of the Trusts hold shares in Australian listed companies;

The Trusts have accumulated income over time, such that it forms part of the capital of the Trusts.

You may in the future receive gifts or loans from the Trusts.

Relevant legislative provisions

Income Tax Assessment Act 1936 Section 99B

Income Tax Assessment Act 1997 Section 768-910

Income Tax Assessment Act 1997 Section 768-915