Private ruling: Residency
Date of advice: 8 December 2016
Published: May 2017
Ruling period: Year ended 30 June 201X | Year ended 30 June 201X
Date scheme commenced: 1 July 201X

Ruling: Q1: Were you a resident of Australia for taxation purposes for the period you were overseas? | A1: No.

Relevant facts and circumstances: You are an Australian citizen. You have been employed with a company in Australia for a number of years. You were offered a position in Country Y. In the 201X income year you departed Australia to take up the employment offer in Country Y. You left Australia permanently. The contract was for an indefinite period of time. You and your spouse relocated to Country Y. You obtained a X year residence Visa to work in Country Y. You leased accommodation in Country Y. You took the majority of your personal possessions with you when you went to Country Y. Your home in Australia was leased out on a long term lease and this is still being leased. Personal and household items not taken to Country Y were stored in a permanent storage facility. Your spouse sold a property in their name before leaving Australia. Your motor vehicles were sold prior to leaving for Country Y. You had your name removed from the electoral roll. You ticked leaving Australia permanently on your outgoing passenger card. You did not return to Australia during the period you were in Country Y. Family members visited you in Country Y from Australia. In XXXX 201X you were advised by your employer that your position was being made redundant. You sought alternative employment in Country Y without success. Your Visa was cancelled in XXXX 201X and you were required to leave Country Y by XXXX 201X.you and your spouse returned to Australia on XXXX 201X. You and your spouse are not eligible to contribute to the PSS or the CSS Commonwealth super 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 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. | Detailed Reasoning - The resides (ordinary concepts) test: The outcomes of several Administrative Appeals Tribunal (AAT) cases have determined that the word ' resides' should be given the widest meaning and there have been a number of factors identified which can assist in determining if a particular taxpayer is a resident of Australia under this test. Recent case law decisions have considered the following factors in relation to whether the taxpayer was a resident under the 'resides' test: (i) Physical presence in Australia (ii) Nationality (iii) History of residence and movements (iv) Habits and "mode of life" (v) Frequency, regularity and duration of visits to Australia (vi) Purpose of visits to or absences from Australia (vii) Family and business ties to different countries (viii) Maintenance of place of abode. These factors are similar to those which the Commissioner has said are relevant in determining the residency status of individuals in IT 2650 and Taxation Ruling TR 98/ 17 Income tax: residency status of individuals entering Australia . It is important to note that not one single factor is decisive and the weight given to each factor depends on individual circumstances. You and your spouse went to Country Y so that you could take up a work contract. The contract was for an indefinite period of time. You had a X year resident Visa for Country Y. You leased accommodation in Country Y. Your intention was to go to Country Y permanently. Based on the facts above for the period you were working in Country Y you were not a resident of Australia for taxation purposes as you did not maintain a continuity of association with Australia. | Detailed Reasoning - The domicile test: If a person's domicile is Australia they will be an Australian resident unless the Commissioner is satisfied they have a permanent place of abode outside of Australia. A person's domicile is generally their country of birth. This is known as a person's 'domicile of origin'. In order to show that an individual's domicile of choice has been adopted, the person must be able to prove an intention to make his or her home indefinitely in that country. Your domicile is Australia. The expression 'place of abode' refers to a person's residence, where they live with their family and sleep at night. In essence, a person's place of abode is that person's dwelling place or the physical surroundings in which a person lives. A permanent place of abode does not have to be 'everlasting' or 'forever'. It does not mean an abode in which a person intends to live for the rest of his or her life. An intention to return to Australia in the foreseeable future to live does not prevent the taxpayer in the meantime setting up a permanent place of abode elsewhere. The Commissioner is satisfied that you set up a permanent place of abode outside Australia for the following reasons: ● You left Australia for work purposes ● Your spouse accompanied you to Country Y ● Your work contract was for an indefinite period ● You leased accommodation in Country Y ● You rented your home out in Australia on a long term lease You were not a resident under this test. | Detailed Reasoning - The 183-day test: Where a person is present in Australia for 183 days during the year of income the person will be a resident, unless the Commissioner is satisfied that the person's usual place of abode is outside Australia and the person does not intend to take up residence in Australia. You were not in Australia for more than 183 days in the 201X income year. You were not a resident under this test. | Detailed Reasoning - The superannuation 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 and your spouse are not eligible to contribute to the relevant Commonwealth super fund. You were not a resident under this test. | Detailed Reasoning - Your residency status: You were not a resident of Australia for taxation purposes for the period you were working in Country Y. You are not required to declare the income derived in Country Y in your Australian tax return.