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ATO Interpretative Decision

ATO ID 2011/50 (Withdrawn)

Income Tax
Residency: employee of a public sector organisation working permanently in Singapore

Attention This ATO ID is withdrawn. Guidance on the basis of the decision in this ATO ID can be found on www.ato.gov.au at Residency - the superannuation test (QC 17140). General advice regarding residency and the relevant tests can be found at www.ato.gov.au/residency (QC 33232, and QC 33219).
Attention This document has changed over time. View its history.
FOI status: may be released
Status of this decision: Decision withdrawn 24 March 2017.

CautionCAUTION: This is an edited and summarised record of a Tax Office decision. This record is not published as a form of advice. It is being made available for your inspection to meet FOI requirements, because it may be used by an officer in making another decision.

This ATOID provides you with the following level of protection:

If you reasonably apply this decision in good faith to your own circumstances (which are not materially different from those described in the decision), and the decision is later found to be incorrect you will not be liable to pay any penalty or interest. However, you will be required to pay any underpaid tax (or repay any over-claimed credit, grant or benefit), provided the time limits under the law allow it. If you do intend to apply this decision to your own circumstances, you will need to ensure that the relevant provisions referred to in the decision have not been amended or repealed. You may wish to obtain further advice from the Tax Office or from a professional adviser.


Issue

Is the taxpayer a 'resident of Australia' under sub-subparagraph (a)(iii)(A) of the definition of the term in subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936) where the taxpayer is an employee of a public sector organisation working permanently in Singapore?

Decision

No. The taxpayer is not a 'resident of Australia' under sub-subparagraph (a)(iii)(A) of the definition of the term in subsection 6(1) of the ITAA 1936 where the taxpayer is an employee of a public sector organisation working permanently in Singapore.

Facts

The taxpayer is an individual who resides in Singapore and has resided there since 2004.

The taxpayer has been employed in a permanent capacity by a public sector organisation since 2004 but was appointed for employment in Singapore only, not within Australia.

The taxpayer does not meet any of the requirements of the definition of 'member' of the superannuation scheme established by deed under the Superannuation Act 1990 as defined in paragraphs 6(1)(b) to 6(1)(j) or subsections 6(2) to 6(8) of that Act.

Reasons for Decision

A foreign resident is defined in subsection 995-1(1) of the Income Tax Assessment Act 1997 (ITAA 1997) as a person who is not a resident of Australia for the purposes of the ITAA 1936.

The term 'resident' or 'resident of Australia' is defined in subsection 6(1) of the ITAA 1936 as:

    a) a person, other than a company, ...

(iii)
 who is:
(A)
 a member of the superannuation scheme established by deed under the Superannuation Act 1990 ; or
(B)
 an eligible employee for the purposes of the Superannuation Act 1976 ; or
(C)
 the spouse, or a child under 16, of a person covered by sub-subparagraph (A) or (B).

Paragraph 6(1)(a) of the Superannuation Act 1990 includes a 'permanent employee' in the definition of 'member'. A 'permanent employee' is relevantly defined under section 3 of the Superannuation Act 1990 as:

   ... a person employed in a permanent capacity by the Commonwealth or by an approved authority, but does not include a person who is engaged or appointed for employment outside Australia only ....

Although the taxpayer is employed in a permanent capacity, the taxpayer is engaged or appointed for employment only outside Australia (namely, in Singapore). Therefore, the taxpayer is not a 'permanent employee' for the purposes of the definition of 'member' in paragraph 6(1)(a) of the Superannuation Act 1990 .

As the taxpayer does not meet any of the other requirements of the definition of 'member' in paragraphs 6(1)(b) to 6(1)(j) or subsections 6(2) to 6(8) of the Superannuation Act 1990 , the taxpayer is not a member for the purposes of sub-subparagraph (a)(iii)(A) of the definition of resident in subsection 6(1) of the ITAA 1936.

Accordingly, the taxpayer is not a 'resident of Australia' under sub-subparagraph (a)(iii)(A) of the definition of that term in subsection 6(1) of the ITAA 1936.

Date of decision: 24 May 2011

Year of income:Year ended 30 June 2011

Legislative References:
Income Tax Assessment Act 1997
   subsection 995-1(1)

Income Tax Assessment Act 1936
   subsection 6(1)
   sub-subparagraph 6(1)(a)(iii)(A)

Superannuation Act 1990
   section 3
   section 6
   subsection 6(1)
   subsection 6(4)

Keywords
Foreign salary & wages
Government agencies
Non resident individuals
Public sector superannuation funds
Salary & wages income
Singapore

Siebel/TDMS Reference Number: 1-31TD7AE; 1-AW0JA8P

Business Line: Small Business/Individual Taxpayers

Date of publication: 17 June 2011

ISSN: 1445-2782

ATO ID 2011/50 (Withdrawn) history   Top  
   Date   Version 
   24 May 2011   Original statement   
 You are here ®  24 March 2017   Withdrawn   


 


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