|
|
此文章由 游子 原创或转贴，不代表本站立场和观点，版权归 oursteps.com.au 和作者 游子 所有！转贴必须注明作者、出处和本声明，并保持内容完整
Issue
Is the taxpayer entitled to a dependant tax offset under section 159J of the Income Tax Assessment Act 1936 (ITAA 1936) in respect of a spouse who they married while overseas, but who is not yet living in Australia?
Decision
Yes. The taxpayer is entitled to a dependant tax offset under section 159J of the ITAA 1936 in respect of a spouse who they married while overseas, but who is not yet living in Australia.
Facts
The taxpayer came to Australia thirty years ago and is a resident for tax purposes.
Three years ago the taxpayer returned to their country of birth and married while there. The taxpayer's spouse did not accompany the taxpayer when they returned to Australia. They have now applied to migrate to Australia. The application has not yet been finalised.
The taxpayer maintains their spouse by sending them money.
Reasons for Decision
Subsection 159J of the ITAA 1936 provides that a taxpayer is entitled to a tax offset where, during the year of income, they contributed to the maintenance of a spouse who is a 'resident of Australia'.
A 'resident of Australia' is defined in subsection 6(1) of the ITAA 1936. Subsection 159J(3A) of the ITAA 1936 provides that, in applying the definition of resident in subsection 6(1) of the ITAA 1936, for the purposes of the dependant spouse tax offset the dependant spouse of a taxpayer will be taken to have the same domicile as the taxpayer.
The taxpayer's spouse is therefore, deemed to have a domicile in Australia for the purposes of the definition of resident in subsection 6(1) of the ITAA 1936. Subsection 6(1) of the ITAA 1936 defines a resident to include a person whose domicile is in Australia, unless the Commissioner is satisfied that their permanent place of abode is outside Australia.
The leading case on permanent place of abode is Applegate v. FC of T 79 ATC 4307; (1979) 9 ATR 899. The Federal Court stated that in respect of the definition of 'resident', a permanent place of abode does not have to be everlasting or forever but it is rather used in contrast to temporary or transitory. Taxation Ruling IT 2650 also considers residency and permanent place of abode outside Australia. Paragraph 12 of IT 2650 states that 'place of abode' refers to a person's residence, where one lives with one's family and sleeps 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.
Where a taxpayer marries while overseas, the spouse is not considered to have a permanent place of abode outside Australia, if the spouse has taken timely and appropriate steps to migrate to Australia.
While the taxpayer's spouse is currently living overseas and therefore their current 'place of abode' is overseas, this is only a temporary arrangement. The spouse intends to join the taxpayer in Australia when their migration application has been approved. As their application has been made in a timely and appropriate manner, the Commissioner accepts that the taxpayer's spouse does not have a permanent place of abode outside of Australia.
As the taxpayer's spouse is deemed have a domicile in Australia and does not have a permanent place of abode outside of Australia, they are a resident as defined in subsection 6(1) of the ITAA 1936. Therefore, the taxpayer has contributed to the maintenance of a resident spouse and is entitled to a dependant tax offset under section 159J of the ITAA 1936.
Date of decision: 1 May 2003
Year of income: Year ended 30 June 2003 |
|
双城记 － 伦敦与巴黎（图片更新到D4 -_____-b) (2011-10-10) 老猫晒太阳 
美女第三波来啦 —— 《The Girl Next Door》 (2013-5-3) feihong 
发表于 2009-8-7 12:58
