1 Are you a resident of Australia for taxation purposes until you depart Australia to take up residence in Country A?
Yes For tax purposes, you are a resident of Australia if you meet at least one of the following tests. You are not a resident of Australia if you do not meet any of the tests. The resides test (otherwise known as the ordinary concepts test) The resides test (otherwise known as the ordinary concepts test) The domicile test The 183 day test The Commonwealth superannuation fund test We have considered your circumstances, and conclude that you are a resident of Australia for the year ending DD/MM/20YY, as follows: You are a resident of Australia according to the resides test. You do not meet the domicile test because your domicile is not in Australia. You will meet the 183 day test because you are likely to be in Australia for 183 days or more during the 20YY income year, and the Commissioner is not satisfied that both: your usual place of abode is outside Australia, and you do not intend to take up residence in Australia. You do not fulfill the requirements of the Commonwealth Superannuation test. Question 2 Will you be entitled to the main residence exemption on the sale of your property? Answer Yes. Paragraph 1.22 of the
Explanatory Memorandum to the Treasury Laws Amendment (Reducing Pressure on Housing Affordability Measures) Bill 2019 indicates that individuals who are both Australian residents and temporary residents for taxation purposes are not excluded from obtaining the main residence exemption. As such, the facts and circumstances relating to your ownership of the property satisfy the provisions of section 118-110 of the ITAA 1997. Therefore, you can apply the full main residence exemption to disregard the capital gain or loss on the sale of the property. This ruling applies for the following period : Year ending DD/MM/20YY The scheme commenced on: DD/MM/20YY
You were born in, and are a citizen of Country A. You are not a citizen of Australia. On DD/MM/20YY, you first entered Australia on Visa A, with your children. Your spouse has remained in the Country A, where they live and work. On DD/MM/20YY, you signed a lease on a rental property close to the children's school. On DD/MM/20YY, you were granted another Visa A and have subsequently held Visa B's up until DD/MM/20YY. In MM/20YY, you solely purchased a property at XXX and have resided there with your children since acquiring the property. You have Australian bank accounts and own motor vehicles in Australia. You have built a network of friends in Australia and engage in community events, as well as volunteering at numerous activities at the schools your children attend. You have no overseas assets. On DD/MM/20YY, you applied for a new Visa B. You currently hold a Visa C, which permits you to reside lawfully in Australia whilst your Visa B application is in progress. Since arriving in Australia in 20YY, you have returned to Country A on XX occasions, for short visits. You will sell your property at XXX in the 20YY tax year and return to Country A.
You will remain in Australia until you have sold the property at XXX.
Income Tax Assessment Act 1997 section 995-1 Income Tax Assessment Act 1936 subsection 6(1) Income Tax Assessment Act 1997 section 118-110