ATO Interpretative Decision

ATO ID 2011/50 (Withdrawn)

Income Tax

• This ATO ID is withdrawn. Guidance on the basis of the decision in this ATO ID can be found on www.ato.gov.au at Residency - the superannuation test (QC 17140). General advice regarding residency and the relevant tests can be found at www.ato.gov.au/residency (QC 33232, and QC 33219).
  This document has changed over time. View its history.

Issue

Is the taxpayer a 'resident of Australia' under sub-subparagraph (a)(iii)(A) of the definition of the term in subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936) where the taxpayer is an employee of a public sector organisation working permanently in Singapore?

Decision

No. The taxpayer is not a 'resident of Australia' under sub-subparagraph (a)(iii)(A) of the definition of the term in subsection 6(1) of the ITAA 1936 where the taxpayer is an employee of a public sector organisation working permanently in Singapore.

Facts

The taxpayer is an individual who resides in Singapore and has resided there since 2004.

The taxpayer has been employed in a permanent capacity by a public sector organisation since 2004 but was appointed for employment in Singapore only, not within Australia.

The taxpayer does not meet any of the requirements of the definition of 'member' of the superannuation scheme established by deed under the Superannuation Act 1990 as defined in paragraphs 6(1)(b) to 6(1)(j) or subsections 6(2) to 6(8) of that Act.

Reasons for Decision

A foreign resident is defined in subsection 995-1(1) of the Income Tax Assessment Act 1997 (ITAA 1997) as a person who is not a resident of Australia for the purposes of the ITAA 1936.

The term 'resident' or 'resident of Australia' is defined in subsection 6(1) of the ITAA 1936 as:

a) a person, other than a company, ...

(iii)

who is:

(A)

a member of the superannuation scheme established by deed under the Superannuation Act 1990; or

(B)

an eligible employee for the purposes of the Superannuation Act 1976; or

(C)

the spouse, or a child under 16, of a person covered by sub-subparagraph (A) or (B).

Paragraph 6(1)(a) of the Superannuation Act 1990 includes a 'permanent employee' in the definition of 'member'. A 'permanent employee' is relevantly defined under section 3 of the Superannuation Act 1990 as:

... a person employed in a permanent capacity by the Commonwealth or by an approved authority, but does not include a person who is engaged or appointed for employment outside Australia only ....

Although the taxpayer is employed in a permanent capacity, the taxpayer is engaged or appointed for employment only outside Australia (namely, in Singapore). Therefore, the taxpayer is not a 'permanent employee' for the purposes of the definition of 'member' in paragraph 6(1)(a) of the Superannuation Act 1990.

As the taxpayer does not meet any of the other requirements of the definition of 'member' in paragraphs 6(1)(b) to 6(1)(j) or subsections 6(2) to 6(8) of the Superannuation Act 1990, the taxpayer is not a member for the purposes of sub-subparagraph (a)(iii)(A) of the definition of resident in subsection 6(1) of the ITAA 1936.

Accordingly, the taxpayer is not a 'resident of Australia' under sub-subparagraph (a)(iii)(A) of the definition of that term in subsection 6(1) of the ITAA 1936.

Year of income:  Year ended 30 June 2011

Legislative References:
Income Tax Assessment Act 1997
   subsection 995-1(1)

Keywords
Foreign salary & wages
Government agencies
Non resident individuals
Public sector superannuation funds
Salary & wages income
Singapore

Business Line:  Small Business/Individual Taxpayers

Date of publication:  17 June 2011

ISSN: 1445-2782