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Are you a resident of Australia for tax purposes?

Yes. This ruling applies for the following : Year ending 30 June 20YY The scheme commenced on: 1 July 20YY

You were born in Country X and are a citizen of Country X. From MM 20XX , you commenced travelling to Australia for holidays. On DD MM 20YY, you arrived in Australia. Following Covid-19 lockdowns, you decided to remain in Australia for a longer period. You have a spouse. You and your spouse have been together for several years. Your spouse is from Country Y. On DD MM 20YY, you applied for Visa W, which would allow you to remain in Australia permanently. You included your spouse in your application. On DD MM 20YY, you were granted Visa X. Your spouse resides in Australia on Visa Y. You have a child who resides in Australia on Visa Z. Your child has attended school in Australia since 20YY. You and your spouse own a property together in Australia which you both live in, along with your child. You are retired. In 20YY, you sold your property in Country X. Prior to the property being sold, it was rented from 20YY through an agent. When you left Country X, you gave some of your household effects to your family and some remained in the property. When you left Country X, you sent all your personal effects to Country Y. You and your spouse have a business in Country Y.

You travel to Country Y to see family and attend to the business. You own properties in Country Y. When you are in Country Y, you stay at in one of your properties. Your family look after your properties in Country Y when you are away. You receive some income from your properties in Country Y. In 20YY, you spent all Australian school holidays in Country Y and Country X with your family. In 20YY and 20YY, you spent all Australian school holidays in Country Y with your family. On DD MM 20YY, you returned to Australia from Country Y. In the 20YY income year to date, you have spent several days in Australia. When completing incoming and outgoing passenger cards, you state that you are a resident of Country X and provide your Australian address. You have a rental property in Australia. You have bank accounts in Australia. You attend church in Australia. You have a driver's licence in both Country X and Australia. You receive a Country X government pension. You have lodged foreign income tax returns in Country X. You are not a contributing member or the spouse of a contributing member of the Public Sector Superannuation Scheme (PSS) or the Commonwealth Superannuation Scheme (CSS).

You intend to live in Australia permanently. You are awaiting the outcome of your Visa X application, which is currently in the final stages.

Income Tax Assessment Act 1936 Subsection 6(1) Income Tax Assessment Act 1997 Subsection 995-1(1)

Section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997) defines an Australian resident for tax purposes as a person who is a resident of Australia for the purposes of the Income Tax Assessment Act 1936 (ITAA 1936). The terms 'resident' and 'resident of Australia', as applied to an individual, are defined in subsection 6(1) of the ITAA 1936. The definition offers four tests to ascertain whether each individual taxpayer is a resident of Australia for income tax purposes. These tests are: •                the resides test (also referred to as the ordinary concepts test) •                the domicile test •                the 183-day test, and •                the Commonwealth superannuation fund test. The resides test is the primary test for deciding the residency status of an individual. This test considers whether an individual resides in Australia according to the ordinary meaning of the word 'resides'. Where an individual does not reside in Australia according to ordinary concepts, they will still be an Australian resident if they meet the conditions of one of the other tests (the domicile test, 183-day test and Commonwealth superannuation fund test).

Our interpretation of the law in respect of residency is set out in Taxation Ruling TR 2023/1 Income tax: residency tests for individuals . We have considered the statutory tests listed above in relation to your situation as follows: The resides test The ordinary meaning of the word 'reside' has been expressed as 'to dwell permanently or for a considerable time, to have one's settled or usual abode, to live, in or at a particular place': See Commissioner of Taxation v Miller (1946) 73 CLR 93 at 99 per Latham CJ, citing Viscount Cave LC in Levene v Inland Revenue Commissioners [1928] AC 217 at 222, citing the Oxford English Dictionary. Likewise, the Macquarie Dictionary defines 'reside' as 'to dwell permanently or for a considerable time; have one's abode for a time'. The observations contained in the case of Hafza v Director-General of Social Security (1985) 6 FCR 444 are also important: Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place - even involuntarily: see Commissioners of Inland Revenue v Lysaght [1928] AC 234 at 248; and Keil v Keil

[1947] VLR 383 - a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place - Levene v Inland Revenue Commissioners [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at 149 - together with an intention to return to that place and an attitude that that place remains "home": see Norman v Norman (No 3) (1969) 16 FLR 231 at 235... here the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as "home", a change of intention may be decisive of the question whether residence in a particular place has been maintained. The Commissioner considers the following factors in relation to whether a taxpayer is a resident under the 'resides' test: •                period of physical presence in Australia •                intention or purpose of presence •                behaviour while in Australia •                family and business/employment ties •                maintenance and location of assets

•                social and living arrangements. It is important to note that no one single factor is decisive, and the weight given to each factor depends on each individual's circumstances. Because the resides test is about whether an individual resides in Australia, the factors focus on the individual's connection to Australia. Having a connection with another country, or being a resident of another country, does not diminish any connection to Australia. The ordinary meaning of reside does not require an individual to have a principle or usual place of residence in Australia. Application to your situation You are a resident of Australia under the resides test from DD MM 20YY based on the following: •                Your spouse accompanied you to Australia. •                You and your spouse own a property in Australia that you live in together. •                You have a child who also lives with you in Australia. •                Your child attends school in Australia. •                You have applied for visa that will allow you to remain in Australia permanently. •                Your spouse is listed on your permanent visa application.

•                You intend to live in Australia permanently. •                You attend church in Australia. •                You have a driver's licence in Australia. •                You have a rental property in Australia. Although the law only requires you to be considered a resident under one test, for completeness the other tests are also considered. Domicile test Under the domicile test, you are a resident of Australia if your domicile is in Australia unless the Commissioner is satisfied that your permanent place of abode is outside Australia. Domicile Whether your domicile is in Australia is determined by the Domicile Act 1982 and the common law rules on domicile.

Your domicile is your domicile of origin (usually the domicile of your father at the time of your birth) unless you have a domicile of dependence or have acquired a domicile of choice elsewhere. To acquire a domicile of choice of a particular country you must be lawfully present there and hold the positive intention to make that country your home indefinitely. Your domicile continues until you acquire a different domicile. Whether your domicile has changed depends on an objective consideration of all relevant facts. Application to your situation In your case, you were born in Country X, and your domicile of origin is the Country X. It is considered that you did not abandon your domicile of origin in Country X and acquire a domicile of choice in Australia. You were not entitled to reside in Australia indefinitely and while living in Australia, you only held Visa X which was valid for a period. Therefore, your domicile is Country X, and you are not a resident under the domicile test. 183-day test Where a person is present in Australia for 183 days or more during the year of income the person will be a resident, unless the Commissioner is satisfied that both:

•                the person's usual place of abode is outside Australia, and •                the person does not intend to take up residence in Australia. Application to your situation You have not been present in Australia for 183 days or more during the 20YY income year. Therefore, you are not a resident under this test. Superannuation test An individual is a resident of Australia if they are either a member of the superannuation scheme established by deed under the Superannuation Act 1990 or an eligible employee for the purposes of the Superannuation Act 1976, or they are the partner, or the child under 16 of such a person. Application to your situation You are not a member on behalf of whom contributions are being made to the Public Sector Superannuation Scheme (PSS) or the Commonwealth Superannuation Scheme (CSS) or a partner of such a person, or a child under 16 of such a person. Therefore, you are not a resident under this test. Conclusion You satisfy the resides test of residency and so are a resident of Australia for income tax purposes for the year ending 30 June 20YY.