Private ruling: Residency
Published: February 2013
Ruling period: 1 July 2012 - 30 June 2013
Date scheme commenced: 1 July 2012

Ruling: Q1: Are you an Australian resident for income tax purposes? | A1: Yes.

Relevant facts and circumstances: You are a citizen of Country B. You have been living in Country A since early-mid 2012, and expect to live there until at least early-mid 2015. You are in Country A accompanying your spouse who is working there for several years. You have a visa issued by the Country A Government. You are living with your spouse in Country A in a house rented for you by your spouse's employer. You expect to return to Australia once during your time in Country A. You intend to return to Australia at the conclusion of your spouse's work in Country A. You have bank accounts in Country A and Country B. You have several bank accounts in Australia. You own a house in Australia as a join tenant with your spouse. You do not have an employment contract in Country A. You have no immediate family members in Australia. You have a range of friends and acquaintances in Australia and Country A. Your spouse is a member of the PSS (Public Sector Superannuation Scheme).

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

Reasons for decision: Detailed Reasoning - Residency for taxation purposes - general: 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. These tests are: · the resides test, · the domicile (and permanent place of abode 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. Normally, the resides test is the primary test for determining the residency status of an individual. If residency is established under the resides test, the remaining three tests do not need to be considered. If residency is not established under the resides test, an individual will still be a resident of Australia for taxation purposes if they meet the conditions of one of the other three tests. In your situation, because your spouse is a member of the PSS, we have only considered the superannuation test. | Detailed Reasoning - The superannuation test: Under this test, an individual will be considered a resident of Australia for taxation purposes if: 1. they are a member of the Public Sector Superannuation Scheme (PSS) which was established under the Superannuation Act 1990 , 2. they are an eligible employee in respect of the Commonwealth Superannuation Scheme (CSS) which was established under the Superannuation Act 1976 , or 3. they are the spouse or a child under 16 of a person who is a member of the PSS or an eligible employee in respect of the CSS. In your case, your spouse is a member of the PSS. Accordingly, you are a resident of Australia for taxation purposes under this test. | Detailed Reasoning - Conclusion - your residency status: You are a resident of Australia under the superannuation test of residency outlined in subsection 6(1) of the ITAA 1936 and subsection 995-1(1) of the ITAA 1997 in the 2012-13 income tax year.

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