总而言之，你是可以为持探亲签证的父母申请Parent Tax offset的。请细读以下判例(private ruling from ATO website).
72654
Printable version
Edited version of private ruling
Authorisation Number 72654
This ruling is a private ruling for the purposes of Division 359 of Schedule 1 of the
Taxation Administration Act 1953.
What this ruling is about:
1. Are your parents residents of Australia for the purposes of claiming a dependant tax offset during the time they lived with you?
2. Is your parent in law a resident of Australia for the purposes of claiming a dependant tax offset during the time they lived with you?
Ruling:
1. Are your parents residents of Australia for the purposes of claiming a dependant tax offset during the time they lived with you?
Yes.
2. Is your parent in law a resident of Australia for the purposes of claiming a dependant tax offset during the time they lived with you?
Yes.
Year(s) of income or period(s) to which this ruling applies:
Year ended 30 June 2004
Year ended 30 June 2005
Year ended 30 June 2006
Commencement date of scheme:
1 July 2003
The scheme that is the subject of the ruling:
You are a resident of Australia for tax purposes.
Your parents and parent in law are overseas citizens.
Your parent’s and parent in law’s visas were tourist sub-class.
Your parents came to Australia and lived with you continuously during their time in Australia.
After your parents left, your parent in law came to Australia and lived with you continuously during their time in Australia.
The purpose of their visits was to live with your family and to help look after your child, as you have full time employment.
You maintained your parents and parent in law while they were in Australia.
Your parents and parent in law lodged migration applications previously to immigrate to Australia.
They did not leave Australia for any period during their stay with you.
Your parents live with relatives in their house overseas, and do not own their own house there.
Your parent in law lives with relatives in their house overseas, and does not own their own house there.
Your parents had bank accounts overseas and in Australia which received interest.
Your parent in law had bank accounts overseas, from which they received interest.
Relevant provisions:
Income Tax Assessment Act 1936 Subsection 159J(1).
Income Tax Assessment Act 1936 Subsection 159J(2).
Income Tax Assessment Act 1936 Subsection 159J(3).
Income Tax Assessment Act 1936 Subsection 159J(4).
Income Tax Assessment Act 1936 Subsection 6(1).
Explanation: (This does not form part of the notice of private ruling)
Subsection 159J(1) of the Income Tax Assessment Act 1936 (ITAA 1936) provides that a taxpayer is entitled to a tax offset where, during the income year, they contribute to the maintenance of a dependant who is a resident of Australia.
Subsection 159J(2) of the ITAA 1936 states that a parent of a taxpayer, or of the taxpayer’s spouse, may be a dependant for the purposes of the dependant tax offset.
In order to determine your eligibility to claim a dependant tax offset under subsection 159J(1) of the ITAA 1936, it is necessary to determine the residency status of your parents and parent in law during the time they were in Australia.
The term ‘resident’ or ‘resident of Australia’ is defined in subsection 6(1) of the ITAA 1936. This definition, in effect, provides four tests for determining whether an individual is a resident of Australia for taxation purposes. These tests are:
?residence according to ordinary concepts
?the domicile and permanent place of abode test
?the 183 day test, and
?the Commonwealth superannuation fund test
The primary test for deciding the residency status of an individual is whether the individual resides in Australia according to the ordinary meaning of the word ‘resides’. However, where an individual does not reside in Australia according to ordinary concepts, the other three tests must be considered.
The ordinary meaning of the word ‘reside’, according to the Shorter Oxford English Dictionary, 1999, Oxford University Press, Melbourne, is to dwell permanently, or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place.
Taxation Ruling TR 98/17 considers the residency status of individuals entering Australia. It states that the word ‘reside’ is wide enough to encompass an individual who comes to Australia permanently (for example, a migrant) or an individual who has dwelt here for a considerable time. The Commissioner’s view is that six months is a considerable time when determining whether an individual’s behaviour is consistent with residing here.
It should be noted that the period of physical presence or length of time in Australia is not, by itself, decisive when determining whether an individual resides here. To be a resident of Australia, an individual’s behaviour over the time spent in Australia must reflect a degree of continuity, routine or habit that is consistent with residing here.
When determining whether a person resides in Australia within the ordinary meaning of the word, the following factors are considered:
?intention or purpose of presence;
?family and business/employment ties
?maintenance and location of assets; and
?social and living arrangements.
In your case, during the period of time that your parents and parent in law spent in Australia on each separate occasion, it is considered that their behaviour showed a degree of continuity, routine or habit that is consistent with residing here. This conclusion is made because your parents and parent in law were present in Australia for a considerable time, they lived with you for the entire time they spent in Australia, and they came to Australia for the purpose of looking after your child while you worked. Your parents and parent in law did not come to Australia for the purposes of having a holiday but rather to live with you.
Therefore, we consider your parents and parent in law to be residents of Australia for tax purposes. You are eligible to claim a dependant tax offset under subsection 159J(1) of the ITAA 1936 for the periods of time that you were contributing to the maintenance of your parents and parent in law while they were in Australia.
Part year claim
Where a person is within a dependant category, or is a resident, for only part of the income year, the dependant tax offset will generally be apportioned on a time basis (subsection 159J(3) of the ITAA 1936).
Separate net income
As your parents and parent in law both receive an amount of income from bank account interest, you may need to take into account that the maximum dependant tax offset is reduced by $1 for every $4 of separate net income (SNI) over $282, which your parents and parent in law earned while you maintained them (subsection 159J(4) of the ITAA 1936). SNI includes interest income from a bank account received by the dependant.
Contribution by others
You will have to take into account any support your parents and parent in law may receive from others such as other relatives while they were supported by you in Australia. Where another person contributed to the maintenance of your dependant, you can claim part of the allowable tax offset, according to the extent of your contribution.
DISCLAIMER
The Register of private binding rulings is a historical public record of written binding advice the Tax Office has issued to specific entities.
Each record is based on the facts of a specific situation as advised to the Tax Office and reflects our view of the law in force at the time the advice was issued.
Before we place a record on the Register, we edit it to protect the applicant’s privacy, so this record may not disclose all the relevant facts or circumstances on which our advice was based.
The Register is not updated to reflect changes in the law or the Tax Office’s views, withdrawal of the advice, or any other change in circumstances.
Given the above, this record is not a publication approved in writing by the Commissioner. It is not intended to provide advice, nor does it set out the Tax Office’s general administrative practice. Therefore this record is non-binding and provides no protection (including from any penalty or interest).
The Commissioner is required to apply the law in the way set out in the ruling only in respect of the entity/ies on whose behalf the ruling was sought.
Edited versions of written binding advice as published on the Register of private binding rulings cannot be relied upon as precedent by any other entity.
?Commonwealth of Australia 2008
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31284
Printable version
EDITED VERSION OF NOTICE OF PRIVATE RULING
Authorisation Number: 31284
This Ruling is a 'Private Ruling' for the purposes of Part IVAA of the Taxation Administration Act 1953.
YEAR(S) OF INCOME TO WHICH THIS RULING APPLIES:
Year ended 30 June 2003
TAX LAW:
Income Tax Assessment Act 1936 Subsection 159J(1).
Income Tax Assessment Act 1936 Subsection 159J(2).
Income Tax Assessment Act 1936 Subsection 159J(3).
Income Tax Assessment Act 1936 Subsection 159J(4).
Income Tax Assessment Act 1936 Subsection 6(1).
Income Tax Assessment Act 1997 Section 995-1.
WHAT THIS RULING IS ABOUT:
Are you entitled to a dependant tax offset for your parents?
THE SUBJECT OF THE RULING:
Your parents came to Australia on a visitor’s visa.
The period of their stay in Australia was from 2002 to 2003.
Your parents stayed with you for the duration of their time in Australia.
You supported them financially.
Your parents do not have separate net income.
Your parents applied for permanent residency in Australia, and this has been approved in principle by the Department of Immigration.
COMMENCEMENT OF ARRANGEMENT:
1 July 2002
RULING:
Are you entitled to a dependant tax offset for your parents?
Yes.
EXPLANATION: (This does not form part of the Notice of Private Ruling)
Subsection 159J(1) of the Income Tax Assessment Act 1936 (ITAA 1936) provides that a dependent tax offset is allowed where a taxpayer contributes to the maintenance of a dependant who is an Australian resident.
Subsection 159J(2) of the ITAA 1936 states that a parent of the taxpayer, or of the taxpayer's spouse, may be a dependant.
The term ‘Australian resident’ is defined in section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997). It means a person who is a resident of Australia for purposes of the ITAA 1936.
Subsection 6(1) of the ITAA 1936 defines a 'resident' or a 'resident of Australia'. The definition provides four tests to ascertain whether a person is a resident of Australia for income tax purposes. These tests are:
(1) Residence according to ordinary concepts (primary test)
(2) Domicile and permanent place of abode test (first statutory test)
(3) 183 day rule (second statutory test)
(4) Commonwealth superannuation test (third statutory test)
If a taxpayer is considered to reside in Australia under the first test, the other tests do not need to be considered.
From the information provided, we accept that your parents are Australian residents for tax purposes and you have contributed to the maintenance of your parents during their stay in Australia.
The circumstances in which an individual entering Australia will be treated as 'residing' here are considered in Taxation Ruling TR 98/17. TR 98/17 provides that individuals who enter Australia and extend their stay beyond six months are regarded as residents from the time of their arrival, as long as their intention and presence has a habitual and routine character during the entire period.
Your parents lived with you throughout their stay in Australia. Their day to day behaviour while in Australia was relatively similar to their behaviour before entering Australia. During their presence in Australia, they established a routine indicating that they resided here.
Accordingly, your parents are considered Australian resident from the time of their arrival in 2002 until their departure in 2003.
Where a person is within a dependent category, or is a resident, for only part of the year, the tax offset will generally be apportioned on a time basis. (subsection 159J (3) of the ITAA 1936).
The maximum dependent parent tax offset allowable in the 2003 tax year is $1,339 for each parent that was maintained. Tax offsets are reduced by $1 for every $4 of Separate Net Income (SNI) over $282, which your dependants earned. (subsection 159J (4) of the ITAA 1936). SNI includes salary and wages, pensions, including most exempt pensions, interest and dividends and other income received by the dependant.
You maintained your parents for less than 365 days during the 2003 tax year. Your parents do not have separate net income. Your tax offset is calculated as follows:
Tax offset in respect of your mother- 1,339 x number of days in Australia/365
Tax offset in respect of your father – 1,339 x number of days in Australia/365
[ 本帖最后由 Jordan 于 2008-8-8 16:08 编辑 ]
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这个不幸是个反例。
31385
Printable version
EDITED VERSION OF NOTICE OF PRIVATE RULING
Authorisation Number: 31385
This Ruling is a 'Private Ruling' for the purposes of Part IVAA of the Taxation Administration Act 1953.
YEAR(S) OF INCOME TO WHICH THIS RULING APPLIES:
Year ended 30 June 2003
TAX LAW:
Income Tax Assessment Act 1936 Subsection 159J(1).
Income Tax Assessment Act 1936 Subsection 159J(2).
Income Tax Assessment Act 1936 Subsection 159J(3).
Income Tax Assessment Act 1936 Subsection 159J(4).
Income Tax Assessment Act 1997 Section 995-1.
Income Tax Assessment Act 1936 Subsection 6(1).
WHAT THIS RULING IS ABOUT:
Are you entitled to a dependant tax offset for your parent?
THE SUBJECT OF THE RULING:
You migrated to Australia with your spouse and child in 2002.
Your mother came to Australia on a visitor’s visa in 2002.
You are an Australian resident.
You and your spouse decided to ask your mother to come to Australia to help you ‘settle in’ in Australia and to help with household duties.
Your mother was totally dependent to you financially during her stay in Australia.
Your mother has a permanent place of abode overseas and she owns a house there.
Your mother has a child living overseas.
Your mother has a bank account overseas.
Your mother returned overseas in the middle of 2003, and will stay there indefinitely unless you can get her Australian citizenship.
COMMENCEMENT OF ARRANGEMENT:
1 July 2002
RULING:
Are you entitled to a dependant tax offset for your parent?
No.
EXPLANATION: (This does not form part of the Notice of Private Ruling)
Subsection 159J(1) of the Income Tax Assessment Act 1936 (ITAA 1936) provides that a dependent tax offset is allowed where a taxpayer contributes to the maintenance of a dependant who is an Australian resident.
Subsection 159J(2) of the ITAA 1936 states that a parent of the taxpayer, or of the taxpayer's spouse, may be a dependant.
The term ‘Australian resident’ is defined in section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997). It means a person who is a resident of Australia for purposes of the ITAA 1936.
Subsection 6(1) of the ITAA 1936 defines a 'resident' or a 'resident of Australia'. The definition provides four tests to ascertain whether a person is a resident of Australia for income tax purposes. These tests are:
(1) The resides test
(2) The domicile test
(3) The 183 day test
(4) The Superannuation test
The primary test for deciding the residency status of an individual is whether the individual resides in Australia according to the ordinary meaning of the word resides.
However, where an individual does not reside in Australia according to ordinary concepts, they may still be considered to be a resident of Australia for tax purposes if they meet the conditions of one of the other three tests.
The resides test
The ordinary meaning of the word 'reside', according to the Shorter Oxford English Dictionary, is to dwell permanently, or for a considerable time, to have one's settled or usual abode, to live in or at a particular place.
As your mother was only in Australia temporarily, she has not demonstrated a settled lifestyle to be considered as a resident under this test.
The Domicile test
If a person is considered to have their domicile in Australia they will be considered an Australian resident unless the Commissioner is satisfied they have a permanent place of abode outside of Australia.
Domicile
Generally speaking, persons leaving Australia temporarily would be considered to have maintained their Australian domicile unless it is established that they have acquired a different domicile of choice or by operation of law.
In order to show that a new domicile of choice in a country outside Australia has been adopted, the person must be able to prove an intention to make his or her home indefinitely in that country.
In your case, your mother’s domicile is overseas, a fact which has not changed during her stay in Australia.
Permanent place of abode.
The expression 'place of abode' refers to a person's residence, where they live with their family and sleep 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.
Although your mother maintains an association with Australia through you, her associations overseas are more significant as she:
?owns a house overseas;
?has a child overseas; and
?a bank account overseas.
Based on these facts, it is therefore considered that your mother has an established permanent place of abode overseas. Therefore, she is not considered to be a resident of Australia for tax purposes under the domicile test
The 183-day test
Where a person is present in Australia for 183 days during the year of income the person will be a resident, unless the Commissioner is satisfied that the person’s usual place of abode is outside Australia and the person does not intend to take up residence in Australia.
Your mother does not satisfy this test as she has an established permanent place of abode outside of Australia.
The Superannuation test
An individual is still considered to be a resident if that person is eligible to contribute to the Public Service Superannuation Scheme (PSS) or the Commonwealth Superannuation Scheme (CSS), or that person is the spouse or child under 16 of such a person.
Your mother is not a member of the PSS or the CSS or a spouse of such a person, or a child under 16 of such a person. Therefore, she will not be treated as a resident under this test.
Your Mother’s Resident Status
As your mother is not deemed to be a resident of Australia under any of the tests of residency outlined in paragraph 6(1)(a) of the ITAA 1936, your mother is not considered to be a resident of Australia for tax purposes.
Although your mother may be a dependant for the purposes of the dependant tax offset, she is not considered to be a resident of Australia. Therefore you are not entitled to a parent tax offset.
[ 本帖最后由 Jordan 于 2008-8-8 16:14 编辑 ]
评论
这是一个更简单的正面判例，可能也符合更多人的情况。判例看来也有前后矛盾的地方。所以我觉得只要你能自圆其说，并大致符合这些判例，就可以申请。
35943
Printable version
EDITED VERSION OF NOTICE OF PRIVATE RULING
Authorisation Number: 35943
This Ruling is a 'Private Ruling' for the purposes of Part IVAA of the Taxation Administration Act 1953.
YEAR(S) OF INCOME TO WHICH THIS RULING APPLIES:
Year ended 30 June 2003
TAX LAW:
Income Tax Assessment Act 1936 subsection 6(1).
Income Tax Assessment Act 1997 section 995-1.
Income Tax Assessment Act 1936 subsection 159J(1).
Income Tax Assessment Act 1936 subsection 159J(2).
Income Tax Assessment Act 1936 subsection 159J(3).
Income Tax Assessment Act 1936 subsection 159J(4).
WHAT THIS RULING IS ABOUT:
Are you entitled to a dependent tax offset for your parents?
THE SUBJECT OF THE RULING:
Your parents arrived in Australia on a visitor visa in the 2002 tax year.
They departed from Australia over six months later.
They did not apply to remain in Australia permanently.
You contributed to the maintenance of your parents during the period of their stay in Australia.
Your parents did not obtain any assets or establish any bank account in Australia. They retained all their assets overseas.
The daily routine of your parents whilst in Australia was similar to their daily routine overseas. During the period of their stay, they acted as housekeepers and as caregivers for your child, especially when you were away.
Only one of your parents derived income during their stay in Australia.
COMMENCEMENT OF ARRANGEMENT:
1 July 2001
RULING:
Are you entitled to a dependent tax offset for your parents?
Yes.
EXPLANATION: (This does not form part of the Notice of Private Ruling)
Subsection 159J(1) of the Income Tax Assessment Act 1936 (ITAA 1936) provides that a dependent tax offset is allowed where a taxpayer contributes to the maintenance of a dependant who is an Australian resident.
Subsection 159J(2) of the ITAA 1936 states that a parent of the taxpayer, or of the taxpayer’s spouse, may be a dependant.
The term ‘Australian resident’ is defined in section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997). It means a person who is a resident of Australia for purposes of the ITAA 1936.
Subsection 6(1) of the ITAA 1936 defines a ‘resident’ or a ‘resident of Australia’. The definition provides four tests to ascertain whether a person is a resident of Australia for income tax purposes. These tests are:
(1) Residence according to ordinary concepts (primary test)
(2) Domicile and permanent place of abode test (first statutory test)
(3) 183 day rule (second statutory test)
(4) Commonwealth superannuation test (third statutory test)
If a taxpayer is considered to reside in Australia under the first test, the other tests do not need to be considered.
From the information provided, we accept that you are a resident of Australia for tax purposes and have contributed to the maintenance of your parents during their stay in Australia.
The circumstances in which an individual entering Australia will be treated as ‘residing’ here are considered in Taxation Ruling TR 98/17. The ruling provides that individuals who enter Australia and extend their stay beyond 6 months are regarded as residents from the time of their arrival, as long as their intention and presence has a habitual and routine character during the entire period.
Your parents lived with you throughout their stay in Australia. They acted as caregivers for your child, especially when you were away. Although most of their assets were still overseas and they have not applied to live here permanently, they have shown a settled purpose for being in Australia. Their day to day behaviour while in Australia was relatively similar to their behaviour before entering Australia. During their presence in Australia, they established a routine indicating that they resided here.
Accordingly, your parents are considered residents of Australia from the time of their arrival until their departure .
Where a person is within a dependent category, or is a resident, for only part of the year, the tax offset will generally be apportioned on a time basis. (subsection 159J(3) of the ITAA 1936).
The maximum dependent parent tax offset allowable in the 2003 tax year is $1339 for each parent that was maintained. Tax offsets are reduced by $1 for every $4 of Separate Net Income (SNI) over $282, which your dependants earned. (subsection 159J(4) of the ITAA 1936). SNI includes salary and wages, pensions, including most exempt pensions, interest and dividends and other income received by the dependant.
Accordingly, you are entitled to a dependent parent tax offset for the year ended 30 June 2003. Your tax offset will be adjusted to allow for part year residency and separate net income of your parents in accordance with the above.
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笑ING, 开怀大笑ING...真是个好帖啊, 让我又吃了一颗定心丸.
草鞋族无法给您加分,不然一定狠狠地加!
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更多判例可见
http://ato.gov.au/rba/search.asp ... 0&sc=1&sr=1
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LZ能不能总结一下怎么才能符合要求？
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lz 直接给个结论吧，究竟可以吗？
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You are a resident of Australia for tax purposes.
Your parents and parent in law are overseas citizens.
Your parent’s and parent in law’s visas were tourist sub-class.
Your parents came to Australia and lived with you continuously during their time in Australia.
After your parents left, your parent in law came to Australia and lived with you continuously during their time in Australia.
The purpose of their visits was to live with your family and to help look after your child, as you have full time employment.
You maintained your parents and parent in law while they were in Australia.
Your parents and parent in law lodged migration applications previously to immigrate to Australia.
They did not leave Australia for any period during their stay with you.
Your parents live with relatives in their house overseas, and do not own their own house there.
Your parent in law lives with relatives in their house overseas, and does not own their own house there.
Your parents had bank accounts overseas and in Australia which received interest.
Your parent in law had bank accounts overseas, from which they received interest.
是不是要满足所有这些条件才行??
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这只是这个案例的情况. 不是每个人都需要满足这些条件的.
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I thought private rulings are case specific i.e. only apply to the case where the Commissioner ruled on..... while public rulings apply to all cases that fall into the category.
That's why you see both favourable and unfavourable results in private rulings.
[ 本帖最后由 kitty_cat 于 2008-8-8 16:42 编辑 ]
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除了通常的一些要求（大家基本都能满足的），总结起来好像是这么几条需要强调：
1、父母亲是过来跟你们生活在一起并帮助你们的，不是来旅行的
2、国内的联系不多，判例35943没这个要求，但31385 就是依据这条判No的
3、强调有移民倾向。如果有交了移民申请的话，更容易满足要求
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谢谢lz，
对于第一条，不是旅行目的，这个怎么判断？
visitor签证，属于旅行目的吗？有没有对于具体那个visa有规定？
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我并没说大家都绝对可以申请，但至少说来35943 是一个非常典型的判例，可应用于很多人的情况。如果你能有充分的证据（比如这些判例）支持你申报的行为，ATO是不会追究利息的，最多是把钱要回去。
我今天咨询ATO时，他们的Officer就让我去看这些判例然后自行决定，因为报税是self assessment。除非你去申请新的private ruling。怕麻烦就自己决定吧。
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LS的总结是MAKE SENSE的. 我早前咨询ATO时得到的也是肯定答复(见坛子里相关帖子).
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俺看了一下所有的案例, 以下是俺的几点结论:
Like I said in other similar posts, the main issue is whether the dependant (being parents or parents-in-law) can be regarded as "residents" for tax purposes, once they satisfy this condition, then rest is pretty straight forward. Residency for tax purposes, the ATO looks for a whole range of factors/circumstances to determine their rulings.
To be honeset, even if the parents have overseas pension, interest/dividend income from China, it is impossible for ATO to track unless it regular admited into parent's bank account in Australia. So SNI is not a big issue.
The truth is that most parents come here is mainly to look after their grand children, while you/your spouse continue to work full time, and you provide them with daily maintenace and living costs.
If you parents are successful in applying for PR, or in process of applying for PR/migration to Australia, then they satify the resident tests, so you can claim dependant parent rebate without any issues.
Alternatively if they stay more than 6 months 183 days, prima facie they satify the 183 days rules unless their permanent residence is overseas. Most of parents going back to China after the expiry of their visa will fail this test.
Thirdly, if the satisfy the superannuation test. One of the key reason that 35943 is successful, is because one of the parents derives income (presumably pay tax/superannuation as well) in Australia. So one of the parents become resident for tax purposes, the other will be regarded as a dependant as well.
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我还有一个小小的技术问题:
假设我父母2007年1月2日来澳,12月30日回中国. 在2007 和2008 两个财年中他们都不满足183天的要求, 可是确实居澳超过了6个月,所以应该属于税务居民.这种情况怎么退呢?
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同问
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