如何理解澳大利亚税务居民?-Resident of Australia for income tax purposes

michael.jyu

An individual is an ‘Australian resident’ if he/she resides in Australia (the primary or ‘ordinary concepts’ test of residence) or satisfies one of three statutory residence tests (ITAA36 s 6(1)). Only the last test is clearly objective. There are a number of cases which deal with the interpretation of the first two tests.

一个独立的个人如果他/她居住在澳大利亚或者符合税法法定的3个居住测试中的1个测试, 那这个人就是澳洲居民。 3个测试中只有最后一个测试具有清晰地客观性。有很多的案例诠释了前两个测试。

Test 1:  Domicile/permanent place of abode test – 居所/永久居留的测试
Under the first of these tests, a person whose domicile is in Australia is deemed to be a resident of Australia unless the Commissioner is satisfied that the person’s permanent place of abode is outside Australia. The term ‘permanent’ is not used in the sense of everlasting, but is used in contrast to temporary or transitory.

第一个测试里, 一个人的住所在澳洲那就被认为澳洲的居民, 除非税官认同一个人的永久住所地在澳洲以外. ‘Permanent’这一词不是用来说明永恒的意义, 而是用来和’临时的, 短时间的’相对而言.

Test 2: 183-day test – 183天测试
A person who is in Australia for a total period of more than half of an income year will be treated as a resident unless it can be established that their usual place of abode is outside Australia and that they do not intend to take up residence in Australia. The test applies in relation to the relevant income year rather that a calendar year. The person’s presence in Australia need not be continuous for these purposes.

一个人在澳大利亚呆的总天数是超过半个财政年(income year)会被视为居民, 除非他们在澳大利亚以外的通常的居住地能被确认,而且他们没有想在澳大利亚居住的意图.这个测试用于财政年而不是公历年.

Test 3: Commonwealth superannuation test – 英联邦养老保险测试
This is an objective test which merely requires membership of a specified superannuation scheme. 这是一个客观的测试, 仅仅需要一个明确的养老保险金的会员.

Part-Year Resident
In addition to the above, where a person resides in Australia within the ordinary meaning of that expression for less than one-half of the year of income, that person would be treated as a resident of Australia only during the actual time he/she is present in Australia.

另外,  在一般的意义上的表述, 一个人居住在澳大利亚少于半个财政年, 那个人可以被视为他是澳洲居民, 单仅指他实际出现在澳洲的时间里.

When a taxpayer is a resident of Australia for income tax purposes, they are assessable on income from all sources. However, when a taxpayer is a non-resident of Australia, they are generally only assessable on Australian-sourced income. Residence in the primary sense is quite different from domicile, nationality and citizenship.

当纳税人是澳洲税务居民时，他们的各种所得都是要征税的然而，当纳税人不是税务居民时，通常他们只会被征收来源于澳洲的所得。居民的初级的意义就不同于住所,  国籍, 或公民。

注: 1. 以上英文材料参考于Australian Master Tax Guide, 2. 本人翻译能力有限, 如有表述不达之处, 敬请批评。

在个税的退税中, 我们会常常碰到  “Resident of Australia for income tax purposes”, “Australian Resident for income tax purposes”, 希望此贴能从税法(不是移民法)的角度帮助更好的理解这个词汇的涵义。

PNG

那若若的问下楼主，留学生是用的tax rate是resident tax rate 还是 foreign tax rate?
留学生应该算local resident for taxing purpose,但是也没有resident tax benefits呢？

lee2267

留学生（短期访问学者除外）----resident tax rate  免 medicare levy。。（但不是自动免，要去 medicare 官网申请 medicare levy exeption certificate）

PS ：楼主 所说的 是 理论以及简单的案例 。实际操作 会更复杂。。基本是 case by case。。

神马浮云

PNG 发表于 2012-12-1 19:24
那若若的问下楼主，留学生是用的tax rate是resident tax rate 还是 foreign tax rate?
留学生应该算local  ...

符合神马tax resident, 就用tax resident rate!

michael.jyu

PNG 发表于 2012-12-1 19:24
那若若的问下楼主，留学生是用的tax rate是resident tax rate 还是 foreign tax rate?
留学生应该算local  ...

如果是tax resident,用resident tax rate. 你指的tax benefits 是指什么呢?

PNG

michael.jyu 发表于 2012-12-1 19:53
如果是tax resident,用resident tax rate. 你指的tax benefits 是指什么呢?

Benefit 1: local residents first $6000 income is tax free....
benefit 2: local residents entitled to franking credits offset...  

michael.jyu

PNG 发表于 2012-12-2 01:19
Benefit 1: local residents first $6000 income is tax free....
benefit 2: local residents entitled ...

If you are a tax resident,
Benefit 1: yes, you are entitled to. However, from year 2012-13, it is $18,200(excluding the consideration of levy here).
Benefit 2: yes, you are entitled to. Confirm your tax file number is provided to trading company, like e-trade, commsec. When u receive dividend notice, check how much franking credits you are entitled to.

michael.jyu

lee2267 发表于 2012-12-1 20:12
留学生（短期访问学者除外）----resident tax rate  免 medicare levy。。（但不是自动免，要去 medicare  ...

Practically, when an individual case is complicated, it is a primary principal that review tax legislations word by word (statutory law), research important cases (common law).

由于时间精力有限，我不能拓展关健性的法案来翻译讨论。tax resident 在实际操作中存在争议性，一个案件在court没有做判决，理论上我们都可以讨论，辩论，其基础就是回到'原点'-statutory law and common law，温故知新。

radar1016

请教楼主几个问题

澳籍，在海外工作3~5年，期间不回澳洲居住

1. 在海外的收入是否要每年向澳洲政府缴税？

2. 如果不需要，3~5年海外工作结束后，带着积蓄回澳洲，是否应当向澳洲政府缴税？

如果在澳洲有房产，然后去海外工作3~5年  结论会有不同吗？（在海外期间 房产出租，租金正常在澳洲报税 应当是按 non tax resident 税率计算吗？）

谢谢！

michael.jyu

radar1016 发表于 2012-12-2 11:02
请教楼主几个问题

澳籍，在海外工作3~5年，期间不回澳洲居住

参考Taxation Ruling IT 2650, 待会儿补上一些相关法案。

1919

michael.jyu 发表于 2012-12-2 11:55
参考Taxation Ruling IT 2650, 待会儿补上一些相关法案。

等你答案啊，mark

michael.jyu

radar1016 发表于 2012-12-2 11:02
请教楼主几个问题

澳籍，在海外工作3~5年，期间不回澳洲居住

澳籍，在海外工作3~5年，期间不回澳洲居住

1. 在海外的收入是否要每年向澳洲政府缴税？-- 在海外工作3~5年，期间不回澳洲居住, 可视为非澳洲税务居民.

2. 如果不需要，3~5年海外工作结束后，带着积蓄回澳洲，是否应当向澳洲政府缴税？-- 非税务居民, 可以不用向澳洲政府交税.

如果在澳洲有房产，然后去海外工作3~5年  结论会有不同吗？（在海外期间 房产出租，租金正常在澳洲报税 应当是按 non tax resident 税率计算吗？）- See case W13


问题的关键是: 你是不是tax resident, 如果是, 那在海外的收入要交税. 如果不是就不要交税. 如果你是tax resident, 而且每财年年都有交税, 入境的钱应该是税后收入, 不需要再交税. 感兴趣的话, 你可以找Applegate's case  79 ATC 4307和Case W13 89 ATC 196, 对照研究一下. 声明, 仅讨论, 不做判断性的结论.

'In Applegate's case  79 ATC 4307, the taxpayer's overseas stay was intended to be indefinite. However, the absence of this element will not necessarily preclude a finding that the taxpayer has a permanent place of abode outside Australia.
For example, in Jenkins' case  82 ATC 4098, a bank officer who, at the bank's request, agreed to go abroad for three years and had not given any consideration to prolonging his stay there beyond that period, had a permanent place of abode outside Australia.
In Case W13 89 ATC 196, Australian source rental income was taxed on the basis that the taxpayers were non-residents. They had returned to Greece in 1979 to care for their ageing relatives but maintained a family home in Australia for nine years pending their return in 1988. It was held that, although they were domiciled in Australia, their permanent place of abode was in Greece.'

JohnnySu

PNG 发表于 2012-12-1 18:24
那若若的问下楼主，留学生是用的tax rate是resident tax rate 还是 foreign tax rate?
留学生应该算local  ...

留学生在澳超过183天算 resident

JohnnySu

radar1016 发表于 2012-12-2 10:02
请教楼主几个问题

澳籍，在海外工作3~5年，期间不回澳洲居住

澳籍，在海外工作3~5年，期间不回澳洲居住

1. 在海外的收入是否要每年向澳洲政府缴税？取决于你是否resident for tax purposes, 要看很多因素 因为你不在澳洲 要考虑其他因素来断定你是否resident 譬如 你family home在不在澳洲  家人在不在澳 主要投资在不在澳 等 不过如果你的intention是3-5年后回澳 你比较像resident 因为你选择澳洲为你的domicil

2. 如果不需要，3~5年海外工作结束后，带着积蓄回澳洲，是否应当向澳洲政府缴税？要不要缴税赚取收入的时候判断 如果钱已经成为储蓄了 就没有税收考虑了

如果在澳洲有房产，然后去海外工作3~5年  结论会有不同吗？像问题1说的 要综合考虑所有因素来决定是否resident
（在海外期间 房产出租，租金正常在澳洲报税 应当是按 non tax resident 税率计算吗？）澳洲房产是一定要缴税的 因为是澳洲收入  至于以什么rate 就要看你是否resident了

rainbow雨

taxbreak 发表于 2012-12-2 15:44
澳籍，在海外工作3~5年，期间不回澳洲居住

1. 在海外的收入是否要每年向澳洲政府缴税？取决于你是否res ...

请问拿820TR visa算resident还是foreign resident？

michael.jyu

rainbow雨 发表于 2012-12-3 18:59
请问拿820TR visa算resident还是foreign resident？

还是3测试,
1. 有没有在澳洲有居所, 有没有长期居住, 长期居住是相对与短期居住, 或过渡居住而言?
2. 183天的测试, 在1July到下个30June的12个月里, 在澳大利亚的总天数有没有超过183天?
3. 在澳洲有没有买养老金, 是不是member?
这3个测试中, 如有一个符合那就可视为澳洲税务居民 (其中测试3最具客观说服力)

lee2267

rainbow雨 发表于 2012-12-3 18:59
请问拿820TR visa算resident还是foreign resident？

一般的tr 考虑到 移民条例基本呆满 183 天。。所以按resident 算。。
至于国外收入---如果是做生意的tr。 。国外收入是免责。。但是一旦拿到 pr那天起。国外收入要申报了。
                         如果是 被澳洲公司派遣国外。。国外支付工资。工资是澳洲收入要算 的。。

michael.jyu

lee2267 发表于 2012-12-3 22:21
一般的tr 考虑到 移民条例基本呆满 183 天。。所以按resident 算。。
至于国外收入---如果是做生意的tr。 ...

When a taxpayer is a resident of Australia for income tax purposes, they are assessable on income from all sources. However, when a taxpayer is a non-resident of Australia, they are generally only assessable on Australian-sourced income. Residence in the primary sense is quite different from domicile, nationality and citizenship.

3IX37

Nothing beats our good old resident test. and I always like to explain the law.

The definition of "resident" is defined in s.995-1 ITAA1997, which refers it as the meaning given in s.6(1) ITAA1936.

LZ has recite the content of the law. The definition of resident actual law has 2 layers and 4 tests.

Summary, you would be resident if you meet any test of the follows.
First layer: Common law test - resides test.
Second layer: Statutory test, which has follow sub-tests
> Domicile test: it has s2 limbs: Domicile and permanent place of abode
> 183 days test: it has 3 limbs: period of stay is greater than 183 days, usual place of abode, and intention of stay
> Commonwealth super fund test: this one is mainly relevant to government workers.


According to Applegate case sited by the LZ, in cases of determining residency, common law test always apply first.

In simple plain words, where you reside is where you eat and sleep. this test involves a lot of case laws.   If you or commissioner can establish that you actually reside in Au, you are a resident. this is very vague. and mainly relates to your intention of stay. For example, in Applegate case, the purpose of the taxpayer in dispute was for his health reason, which was determined by the House of Lords as temporary purpose.

and then the law moves to statutory tests.

Domicile test is more often used for Au resident live offshore.  183 days test are more often used for foreign resident come in staying in Au.

In brief,
the Domicile is a common law term, which is generally classed as Domicile as origin, domicile of choice and domicile of support. if the taxpayer is not a adopted kid, the domicile of support usually would not apply
Domicile of origin, according to Domicile Act and international common law, is where your father domiciled when you were born. (Flynn case)
Domicile of Choice is where you decide to domicile.
and the second limb of this test is , you don't have a permanent place of abode overseas. the term of permanent place of abode is again a common law term.

This means, if you are Au domicile of origin, or u have acquired a domicile of choice in AU. For example, after you left for overseas, if you don't or can't prove you have a permanent place of abode, you are Au resident. And according to the Applegate case, permanent is not everlasting. 2 years can be sufficient.


183 day test. is much simpler.
1) you have to be in Au for more 183 days. this is not decisive. you can be a resident if you have been in AU for less than that.
2) you must do not have usual place of abode. if you have a home available to you overseas, you automatically not a resident.
3) you intention to stay.

bear mind, for 183 days, all 3 limbs are "all' test, you have satisfy them all.

Last but not least, the s.6(1) only deals with the resident in AU, it does not apply for dual resident. Tax treaty would provide tie break for the taxing right.

jenny_mel

请问LZ和19楼，如果假设将来
1. 在中国和澳洲都有固定的自住房，
2. 在财政年度居住超过183天，但是没有澳洲收入，
3. 没有在澳洲缴纳养老金
如果不愿意转为澳洲纳税居民，是否可以？
还是税务局会和入境记录有连接功能，会有系统提醒？（类似汇款记录查询事件）
还是需要自觉申请转为澳洲纳税居民，请问这一步怎么操作？

谢谢！

michael.jyu

jenny_mel 发表于 2012-12-4 17:34
请问LZ和19楼，如果假设将来
1. 在中国和澳洲都有固定的自住房，
2. 在财政年度居住超过183天，但是没有澳 ...

简单的说, 短期离开澳大利亚后, 是不是最终目的还打算要回到澳大利亚居住. 如果是, 那基本可以说是税务居民了 (参考下面案例).

A bank officer was posted from Australia to the New Hebrides for 2 years only and never intended to stay any longer. During his overseas posting he maintained bank accounts in Australia, into one of which family allowance payments continued to be made, and let his Australian home unfurnished. He was accompanied by his wife and children. His place of abode in the New Hebrides was considered to be temporary or transitory for two reasons. Firstly, he lived, by the bank's continuing permission, in a house leased by the bank in the New Hebrides. Secondly, having regard to the 2- year period of his appointment, the taxpayer's relationship with his place of abode in Port Vila lacked " a more enduring relationship" (see Applegate per Fisher J 79 ATC at p.4317; 9 ATR at pp 910-911) with the particular place of abode than that expected to exist where a person ordinarily resides there or has there his usual place of abode (Case Q68 83 ATC 343; Case 132 26 CTBR(NS) 913).

Result : resident.

An engineer went to a developing country to manage an aid project. He received a salary supplement paid under an Australian Government assistance scheme. He expected to remain in the overseas country for 18 months and then to obtain a posting to manage a similar project in another developing country. He was considered to have a permanent place of abode in the overseas country and to be a non-resident of Australia. A different conclusion may have been reached if it had been his intention to return to Australia at the end of the first posting.

Result: non-resident.

如果假设将来
1. 在中国和澳洲都有固定的自住房，
2. 在财政年度居住超过183天，但是没有澳洲收入，
3. 没有在澳洲缴纳养老金

从以上假设来看, 看起来是刚刚符合税务居民, 如果再考虑家庭成员是不是居住在澳洲, 在澳洲有没有房产, 有没有银行帐户, 有没有生意投资, 有没有其他固定资产, 是不是税法居民, 可以更清楚的说明了.

假设的情况和下面的案例可能相识, 可供参考:

A businessman operating an import/export business spends over 6 months every year in the overseas country with which most of the business is carried out. His wife travels with him during the 6-month stay overseas. Their children, aged between 20 and 32, live in Australia. The businessman owns a home in Australia where he lives for just under 6 months each year and a home in the other country where he lives the rest of the time. He holds investments and other accounts in both countries. Because of the length of his stays in Australia, the conclusion was reached, having regard to the duration of his presence overseas and the lack of continuity of his presence overseas, that he had not established a permanent place of abode in the overseas country. This conclusion was supported by the extent of the durability of his association with Australia. In the absence of evidence that he had adopted a domicile of choice in the other country (for example, a migration visa to the other country), he was considered to be a resident of Australia and therefore subject to Australian income tax on all income derived by him.

Result: resident.

3IX37

jenny_mel 发表于 2012-12-4 16:34
请问LZ和19楼，如果假设将来
1. 在中国和澳洲都有固定的自住房，
2. 在财政年度居住超过183天，但是没有澳 ...

In your question, there are a few factual uncertainties
- it wasn't mentioned whether the taxpayer is treated as a tax resident in CHN according to its domestic tax law or not, during his or her absence of CHN.
- what is the intention or purpose of the person's stay in Au?

Assuming, the person in question is also a tax resident because of CHN's domestic tax law. and if he or she is also an Au resident by Au tax law, we have dual resident here.

Au-CHN treaty Article 4(3) gives a tie breaker for dual resident,
(a) He or she would be the resident of which country in where a permanent home is available to him or her, or
(b) if he or she has a permanent home in both or neither country, he or she is the resident of which country he or she has a closer economic and personal relations to. (as you can see, if the person satisfies 183 test, he would be AU resident. explained below)


How Au tax law works are in steps as follows

Application of Law:

1) Does the person reside in Au and Is his or her intention of stay in Au, by case law, permanent? If the answer is Yes, he or she is in. if it can't be proved, go next test.

2) Domicile test, as i explained before, this test is more often used for Au resident lives offshore. So commissioner is more likely than not would go straight to next 183 days test

3) 183 days test

limb 1) Yes, He or she has been in Au for more than 183

Limb 2) If he maintain a usual place of abode in CHA, for example an apartment is available to him or her, (Pls note if the apartment is rented out, it is not deemed as available. But it is only renovating, it would still be deemed as available.) He or she then would not be deemed as an Au resident (Subrahmanyam Case). Otherwise, next limb

limb 3) his or her intention of stay: if the intention can be proven by case law is permanent, he or she intends to stay in Au permanently.

Then base all the 3 limbs above, he or she meets 183 days test and he or she then would be an Au resident.

As it is easy to see, if 183 days test is met, his or her personal and economic relation is more likely than not to be closer to Au.

So the conclusion
1) if the case law can establish he or she resides in AU, he or she would be an Au resident. as it would also establish he or she has closer personal and economic relation to Au
2) if he has no usual place of abode back in CHN, he or she would be an AU resident if his intention can be proven by case law is permanent. and then he or she would also be an Au resident by CHN tax treaty.

3) as it can be seen that there are some overlaps in Au-CHN tax treaty and AU domestic tax law, and it is more likely than not, if the person is an Au resident under AU domestic tax law, even he or she is also a CHN tax resident, the treaty would give Au the tax right.

I hope this info helps not confuses you more.  

3IX37

3IX37 发表于 2012-12-4 13:12
Nothing beats our good old resident test. and I always like to explain the law.

The definition of  ...

Thanks LZ for your recognition :)

MU

ATO说你是就是，说你不是就不是

3IX37

manunited 发表于 2012-12-4 20:13
ATO说你是就是，说你不是就不是

you remind me of an old joke about an interview for an accountant position.

the question was what one plus one equals to.

at the end, the answer given by the one got the job was " what would you like it to be?" ;)

xiaoshou

学习了

3IX37

radar1016 发表于 2012-12-2 10:02
请教楼主几个问题

澳籍，在海外工作3~5年，期间不回澳洲居住

澳籍，在海外工作3~5年，期间不回澳洲居住 - your domicile of choice is Au, if you don't have a permanent place of abode offshore, you would be deemed as an Au resident

1. 在海外的收入是否要每年向澳洲政府缴税？

2. 如果不需要，3~5年海外工作结束后，带着积蓄回澳洲，是否应当向澳洲政府缴税？

如果在澳洲有房产，然后去海外工作3~5年  结论会有不同吗？（在海外期间 房产出租，租金正常在澳洲报税 应当是按 non tax resident 税率计算吗？）

谢谢！
for your question 1, provided that you are an Au tax resident by Au tax, the next question you need to consider is whether you are also tax resident in the other jurisdiction. and is the other jurisdiction a treaty country with Au?

If there is a treaty issue (by meaning that you are tax resident of both countries), the taxing right would be decided by the tax treaty. Otherwise, you might be double taxed to some extend. nevertheless you can always claim foreign tax paid as a tax credit to reduce your Au tax liability.

for your question 2.  In general, your personal saving is not subject to income tax when you transfer back in Au.

if you have a house in Au, the relevant question here is whether the house is still available to you as a permanent home. since it has been rented out, the conclusion is more likely to be that it is not a permanent home available to you,  you therefore are no longer a resident for Au tax purpose. However, the rental income as an Au sourced income, would be taxed at non-resident individual tax rate at 29% from the first dollar you earn.

radar1016

3IX37 发表于 2012-12-4 22:41
澳籍，在海外工作3~5年，期间不回澳洲居住 - your domicile of choice is Au, if you don't have a perm ...

your answers to 1 and 3 are quite self contradictory

why am I au tax resident in Q1 and non au tax residents in Q3?

3IX37

radar1016 发表于 2012-12-5 11:08
your answers to 1 and 3 are quite self contradictory

why am I au tax resident in Q1 and non au t ...

The suggestion for your question 1 was under the assumption u were an Au resident, which was worded by " Provided that u r an Au resident ........"

radar1016

3IX37 发表于 2012-12-5 13:31
The suggestion for your question 1 was under the assumption u were an Au resident, which was worde ...

But the purpose of the question is to ask whether I am an au tax resident in that circumstance

However, thanks anyway