Private ruling: Residency
Date of advice: 28 February 2018
Published: June 2018
Ruling period: Year ended 30 June 20XX
Date scheme commenced: 1 July 20XX

Ruling: Q1: Are you a resident of Australia for taxation purposes from when you arrived in Australia? | A1: Yes

Relevant facts and circumstances: Your country of origin is outside Australia. You are a citizen of that country. You arrived in Australia in the 20XX/XX financial year. Your partner accompanied you. Your visa upon arrival to Australia was a Temporary Work (Skilled) visa (subclass 457) due to your partner’s work. This visa lets a skilled worker travel to Australia to work in their nominated occupation for their approved sponsor for up to four years. You have since been granted a Bridging Visa A (BVA). A Bridging visa A (BVA) is a temporary visa. It allows you to stay in Australia after your current substantive visa ceases and while your substantive visa application is being processed. You have no dependants. You came to Australia intending to live in Australia. You intend to reside in Australia permanently. You have left and returned to Australia four times since first arriving. You have left Australia four times since your arrival but only for short periods of time. Your departures were related to your partner’s work. Your partner lives outside of Australia. You have not lodged any foreign income tax returns while living in Australia. You haven't maintained any professional, social or sporting connections with your country of origin. You were renting prior to your arrival in Australia. You do not have a home available for use in another country. You own no assets outside of Australia. You have a home that you reside at in Australia You have assets in Australia, a property and an Australian bank account. You do not receive any income from sources outside of Australia. You do not have an employment position being held for you overseas while you're in Australia. You have no employment in Australia. Neither you nor your partner has ever been a Commonwealth employee for superannuation purposes. You have not enrolled in any course that lasts for more than six months while in Australia.

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

Reasons for decision: Detailed Reasoning - Residency: 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 (ITAA 1936). The definition contains four tests which will help us ascertain whether you were a resident of Australia for income tax purposes. These tests are: (i) the residence according to ordinary concepts test; (ii) the domicile/permanent place of abode test; (iii) the 183 days/usual place of abode test; and (iv) the Commonwealth superannuation test. You need only fall within one of these categories to be a resident of Australia and must fall outside all four to be a non-resident. The main test for deciding your residency status is whether you reside in Australia according to the ordinary meaning of the word resides. (i) the residence according to ordinary concepts test The ordinary meaning of the word 'reside', according to the Macquarie Dictionary, 2001, rev. 3rd edition , is 'to dwell permanently or for a considerable time; having one's abode for a time', and according to the Compact Edition of the Oxford English Dictionary (1987), is 'to dwell permanently, or for a considerable time, to have one's settled or usual abode, to live in or at a particular place'. In your case, ● you arrived in Australia on a temporary visa ● you intend to remain in Australia permanently and have applied for a permanent residence visa ● you are living in a home that you have purchased in Australia In view of the above, the Commissioner considers that your behaviour in Australia reflects a degree of continuity, routine and habit that is consistent with residing here. Accordingly, you are an Australian resident for taxation purposes from the time you arrived in Australia. | Detailed Reasoning - Temporary resident: Subsection 995-1(1) of the ITAA 1997 specifies that a taxpayer is a temporary resident if: a. they hold a temporary visa granted under the Migration Act 1958; b. they are not an Australian resident within the meaning of the Social Security Act 1991, and c. their spouse is not an Australian resident within the meaning of the Social Security Act 1991. Under the Social Security Act 1991, an Australian resident is a person who resides in Australia and is either an Australian citizen or holds a permanent resident visa. Although you are a resident of Australia for taxation purposes, you are also a temporary resident of Australia because you are not an Australian citizen, you do not have a spouse who is an Australian citizen, and you have not yet received your permanent resident visa. Therefore you are currently a temporary resident.