Private ruling: Residency
Date of advice: 16 May 2017
Published: September 2017
Ruling period: Year ending 30 June 2017 | Year ending 30 June 2018 | Year ending 30 June 2019
Date scheme commenced: 1 July 2016

Ruling: Question and answer: | Are you a resident of Australia for income tax purposes? | No.

Relevant facts and circumstances: You are a citizen of Australia. You were born in Australia. You have been living and working in Country Y since June 20XX. You have owned an apartment in Country Y since 20XX. You are married to a resident of Country Y and you and your spouse are expecting a child. You intend on applying for permanent residency of Country Y. You and your spouse own land in Country Y. Your property in Australia is currently on the market and is vacant. You have notified Medicare that you are no longer living in Australia. You have had your name removed from the Electoral Commission records. You have made two short trips back to Australia since leaving in 20XX to visit family. You have not been in Australia for more than 183 days in any financial year since leaving Australia. You and your spouse are not eligible to contribute to the PSS or the CSS 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: Summary: Section 995-1 of the Income tax Assessment Act 1997 (ITAA 1997) defines an Australian resident for tax 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. 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 under section 995-1(1) of the ITAA 1997 and subsection 6(1) of the ITAA 1936.