Private ruling: Residence for tax purposes
Date of advice: 2 August 2017
Published: November 2017
Ruling period: Year ending 30 June 2018 | Year ending 30 June 2019 | Year ending 30 June 2020
Date scheme commenced: July 2017

Ruling: Q1: Are you a resident of Australia for taxation purposes under the Commonwealth Superannuation test? | A1: No.

Relevant facts and circumstances: You are not eligible to contribute to the PSS or the CSS commonwealth super funds. Your spouse is not eligible to contribute to the PSS or the CSS super funds.

Relevant legislative provisions: Income Tax Assessment Act 1997 Subsection 995-1(1). | Income Tax Assessment Act 1936 Subsection 6(1). Further issues for you to consider | Anti-avoidance rules

Reasons for decision: Summary: Section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997) provides that where you are a resident of Australia for taxation purposes, your assessable income includes income gained from all sources, whether in or out of Australia. However, where you are a foreign resident, your assessable income includes only income derived from an Australian source. The terms resident and resident of Australia, in regard to an individual, are defined in subsection 6(1) of the Income Tax Assessment Act 1936 . The definition offers four tests to ascertain whether each individual taxpayer is a resident of Australia for income tax purposes. These tests are the: ● resides test ● domicile and permanent place of abode test ● 183 day test and ● Commonwealth superannuation fund test. The primary test for deciding the residency status of each individual is whether they reside in Australia according to the ordinary meaning of the word resides. If the primary test is satisfied the remaining three tests do not need to be considered as residency for Australian tax purposes has been established. You are only requesting that the Commissioner consider the Commonwealth superannuation fund test. | Detailed Reasoning - The Commonwealth superannuation fund test: An individual is still considered to be a resident if that person is eligible to contribute to the PSS or the CSS, or that person is the spouse or child under 16 of such a person. To be eligible to contribute to those schemes, you must be or have been a Commonwealth Government employee. You are not eligible to contribute to the PSS or the CSS Commonwealth super funds. Your spouse is not eligible to contribute to the PSS or the CSS Commonwealth super funds. You are not a resident under the Commonwealth super test.