Private ruling: Residency
Ruling period: Year ended 30 June 2010 | Year ended 30 June 2011 | Year ended 30 June 2012 | Year ended 30 June 2013 | Year ended 30 June 2014
Date scheme commenced: 1 July 2009

Ruling: Q1: Are you an Australian resident for tax purposes? | A1: No.


Relevant legislative provisions: Income Tax Assessment Act 1997 section 6-5 Income Tax Assessment Act 1936 subsection 6(1)

Reasons for decision: Detailed Reasoning - Residency: 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 (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 test · the 183 day test · the superannuation test. The first two tests are examined in detail in Taxation Ruling IT 2650. The primary test for deciding the residency status of an individual is whether the individual resides in Australia according to the ordinary meaning of the word resides. However, where an individual does not reside in Australia according to ordinary concepts, they may still be considered to be a resident of Australia for tax purposes if they meet the conditions of one of the other three tests. | Detailed Reasoning - The resides test: The ordinary meaning of the word 'reside', according to the Macquarie Dictionary , 2001, rev. 3 rd edition, The Macquarie Library Pty Ltd, NSW, 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'. You and your spouse reside in country A as evidenced by: · maintaining a family home there · residing with your spouse · the majority of your work is in country A and · you only intend residing in Australia a maximum of 120 days per year. Therefore, you are not considered to be residing in Australia. | Detailed Reasoning - The domicile test: If a person is considered to have their domicile in Australia they will be considered an Australian resident unless the Commissioner is satisfied they have a permanent place of abode outside of Australia. In order to show that a new domicile of choice in a country outside Australia has been adopted, the person must be able to prove an intention to make his or her home indefinitely in that country. 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. In your case, · You have a family home in country A, · you maintain an association with Australia through your husbands director roles of two investment companies, · you reside in country A with your spouse, and · you have family ties in country A. Based on these facts, the Commissioner is satisfied that you have not established a permanent place of abode in Australia. | Detailed Reasoning - The 183-day test: This test does not apply to you as it has been identified that your permanent place of abode is in country A. | Detailed Reasoning - The superannuation test: An individual is still considered to be a resident if that person is eligible to contribute to the Public Service Superannuation Scheme (PSS) or the Commonwealth Superannuation Scheme (CSS), or that person is the spouse or child under 16 of such a person. You will not be treated as a resident under this test as you are not a member of the PSS or the CSS, a spouse of such a person, or a child under 16 of such a person. Your residency status As you are not considered to be a resident of Australia under any of the tests of residency outlined in subsection 6(1) of the ITAA 1936, you are not considered to be an Australian resident from the date of your departure from Australia under subsection 995-1(1) of the ITAA 1997.

Please check this edited version to be sure that there are no details remaining that you think may allow you to be identified. Contact us at the address given in the fact sheet if you have any concerns. | Relevant facts: You are resident of country A for income tax purposes. | In 2010 you were granted a class XXX Australian permanent residence visa. | You reside in country A for over 200 days of the year. | You believe you will reside in Australia for a maximum of about 100 days in each financial year. | You maintain a family home in country A. | Your children and parents live in overseas. | Your spouse conducts a consulting business in country A and is the director of companies in country A. | Your spouse derives more than 90% of their income from country A sources. | Your spouse is the director of entities in Australia. | You own a unit in Australia which is your place of residence when you are in Australia. | The majority of your assets are located outside Australia. | You conduct a business in country A and are the director of a company in country A. | While in Australia you do not engage in earning employment income.