Private ruling: Residency for taxation purposes
Date of advice: 9 August 2018
Published: September 2018
Ruling period: Year ended 30 June 2018 | Year ended 30 June 2019 | Year ended 30 June 2020 | Year ended 30 June 2021 | Year ended 30 June 2022
Date scheme commenced: 1 July 2017

Ruling: Q1: Will you be considered a non-resident of Australia from late 20XX? | A1: Yes 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.

Relevant facts and circumstances: Your domicile of origin is Country A You married and moved to Australia in 20XX You have three children You were planning to move to the Country A You left Australia with your children on 20XX Your spouse was made redundant on late 20XX and they subsequently left Australia late 20XX You are a dual citizen of Australia and Country A and can remain in Country A indefinitely Your spouse has a temporary visa and has applied for a probationary resident visa which expires in January 2019 Your spouse will apply for permanent residency in late 2018 The children can stay in Country A until mid 2019 and are applying for a permanent resident visa The children are enrolled in school in Country A You have family and property in the Country A and have commenced building a home in the Country A You do not intend to return to Australia to live You have visited Australia once to visit sick relatives

Relevant legislative provisions: Income Tax Assessment Act 1936 Subsection 6(1) | Income Tax Assessment Act 1997 Subsection 995-1(1)