ATO Interpretative Decision

ATO ID 2002/1064

Income Tax

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Issue

Is a taxpayer who is in receipt of a Comsuper pension and living overseas, a 'resident' as defined in subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936)?

Decision

No. A taxpayer who is in receipt of a Comsuper pension and living overseas, is not a resident as defined in subsection 6(1) of the ITAA 1936 as they do not pass the superannuation tests.

Facts

The taxpayer previously lived and worked in Australia. They left Australia to permanently reside in another country. The taxpayer does not intend to return to Australia.

The taxpayer does not have any assets or bank accounts in Australia.

The taxpayer is in receipt of a Public Sector Superannuation Scheme (PSS) Comsuper pension - an Australian superannuation pension.

Reasons for Decision

A person is a resident of Australia for the purposes of the ITAA 1936 if they fall within the definition of 'resident' or 'resident of Australia' as defined in subsection 6(1) of the ITAA 1936 as:

(a)

'a person, other than a company, who resides in Australia and includes a person-

(i)

whose domicile is in Australia, unless the Commissioner is satisfied that his permanent place of abode is outside Australia;

(ii)

who has actually been in Australia, continuously or intermittently, during more than one-half of the year of income, unless the Commissioner is satisfied that his usual place of abode is outside Australia and that he does not intend to take up residence in Australia; or

(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 ...'

As the taxpayer does not reside and does not intend to reside in Australia in the future it is accepted that the taxpayer's permanent place of abode will be outside Australia (Taxation Ruling IT 2650).

According to the definition of 'resident' under subsubparagraph 6(1)(a)(iii)(A) of the ITAA 1936, a taxpayer will be considered to be a resident of Australia if they are a 'member' of the superannuation scheme established by deed under the Superannuation Act 1990. The PSS was a superannuation scheme established by deed under the Superannuation Act 1990.

Rule 1.1.1 of The Schedule to the Superannuation Act 1990 defines a 'member' to mean a person who is a member of the PSS. Generally this would include a permanent or temporary employee of the Australian Public Service (APS). As the taxpayer is no longer employed by the APS they are considered to be a 'retirement pensioner'. This term is also defined in Rule 1.1.1 to mean a 'former member' to whom a pension is payable. Logically a 'former member' has ceased to be a 'member'. Therefore as a former member the taxpayer is not a 'member' of the superannuation scheme for the purposes of the definition of 'resident' under subsubparagraph 6(1)(a)(iii)(A) of the ITAA 1936.

Subsubparagraph 6(1)(a)(iii)(B) of the ITAA 1936 has no application to the taxpayer as they neither are or were a member of the Commonwealth Superannuation Scheme.

Therefore the taxpayer, although they are in receipt of a PSS Comsuper pension, is not a resident of Australia under the definition of resident in subsection 6(1) of the ITAA 1936.

Year of income:  Year ended 30 June 2002

Legislative References:
Income Tax Assessment Act 1936
   subsection 6(1)
   subsubparagraph 6(1)(a)(iii)(A)
   subsubparagraph 6(1)(a)(iii)(B)

Related Public Rulings (including Determinations)
Taxation Ruling IT 2650

Related ATO Interpretative Decisions
ATO ID 2002/1065

Keywords
Non resident individuals
Resident/residency
Superannuation pension income
Annuities & superannuation pensions

Siebel/TDMS Reference Number:  CW3105931-10

Business Line:  Small Business/Individual Taxpayers

Date of publication:  28 November 2002

ISSN: 1445-2782