Private ruling: Residence
Date of advice: 3 August 2017
Published: November 2017
Ruling period: Year ended 30 June 2015 | Year ended 30 June 2016 | Year ended 30 June 2017 | Year ending 30 June 2018
Date scheme commenced: 17 August 2014

Ruling: Q1: Are you a resident of Australia for income tax purposes? | A1: No.

Relevant facts and circumstances: You are a citizen of Australia and Country Y. You were born in Country Y. You went to Country Z on in the 2015 income year to work and live permanently. You have no intention of returning to Australia to live permanently. You have a work permit for Country Z. You lodge tax returns in Country Z. Your current work contract in Country Z is for three years and will be extended up to 10 years. You and your spouse have separated but not divorced. Your spouse remains in Australia along with two dependent children. You financially support your two dependent children and do not financially support your former spouse. Your family do not visit you in Country Z. You visit your family in Australia and you do not stay at the family home, you stay with one of your adult children. Your visits to Australia have not exceeded 183 days since leaving and will not exceed 183 days in any future income year. You have a bank account in Country Z. You have bank accounts and rental properties along with your former main residence in Australia. You initially lived in accommodation provided by your employer in Country Z which was for X years. You purchased household items for this property. You have now moved to another property in Country Z which has a X year lease. You are not eligible to contribute to the PSS or the SS 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 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.