Are you an Australian resident for tax purposes once you departed Australia on DDMM20XX?
No. This ruling applies for the following periods : For the year ended 30 June 20XX For the year ended 30 June 20XX For the year ended 30 June 20XX For the year ended 30 June 20XX The scheme commenced on: 1 July 20XX
You were born in Australia in 19XX and are an Australian citizen. Your spouse is a citizen of an overseas country (Country B). On DDMM20XX you departed Australia with your spouse and first child to live in Country B. You lived with your spouse's parents for a period of X to be closer to the Country B family while your first child was still young. While living overseas in Country B, your Australian family home has been continuously rented under a non-arm's length agreement since DDMM20XX. The current rental lease will expire soon. You and your spouse conceived more children while living in Country B. From MM20XX you and your spouse leased your own rental property in Country B on ongoing basis. Your children are citizens of Country B however your first child was born in Australia before you departed in 20XX and is an Australian citizen. You studied a part time post graduate degree at a Country B university for X years from MM20XX to MM20XX. You are currently a tax resident of Country B having been there for more than 183 days. Your visa in Country B allows you to live and work there due to your spouse's Country B family descent.
While living in Country B you received income from X where you worked in the position of X on contract as a X. You hold an ownership interest in your business in Australia and you are currently performing some functions remotely from Country B. You do have a position in the business remaining for you when you return to Australia which has two locations in different suburbs. You are looking to purchase another business which also located in Australia. You hold a Driver's' licence in Country B You attend a gym while living in Country B. You do not own any assets outside of Australia such as bank accounts, investments or real property. You advised us that you may be eligible to apply for citizenship in Country B after living there for a conditional period of time. You travelled back to Australia on DDMM20XX to visit family and friends for 35 days and you have since departed Australia again on DDMM20XX. You are planning to enrol your children into childcare/education facilities when you return to Australia permanently, sometime during 20XX and when your spouse is agreeable to travel.
You started to plan your permanent return to Australia, on your recent visit in MM20XX however your intention at that time was not to return here to reside. Your spouse and children remained in Country B and did not travel to visit Australia with you. Other contributing factors for your delay in returning were due to COVID-19 international border closures and then your spouse becoming pregnant. Staying longer overseas in Country B also meant you were personally able to provide family stability for your spouse and children. In Australia you own the following assets: • 2 properties. • 50% ownership interest in your Australian company, and • 1 Australian share held within your Australian trust. Your personal possessions and effects are currently kept in paid storage in Australia. While living in Country B your Australian mail is currently sent to your rental property and your parent's address. You advised your Australian financial institution/s with whom you have investments with that you are a foreign resident for tax purposes so that non-resident withholding tax can be deducted on any interest income you received.
You did not advise the Australian Electoral Commission or Medicare that you departed Australia in 20XX. You have a current Australian private health insurance policy however you did not inform them that you departed Australia in 20XX. You are not a member of the Public Sector Superannuation Scheme (PSS) which was established under the Superannuation Act 1990 . You are not an eligible employee in respect of the Commonwealth Superannuation Scheme (CSS) which was established under the Superannuation Act 1976. You are not the spouse or a child under 16 of a person who is a member of the PSS or an eligible employee in respect of the CSS.
Income Tax Assessment Act 1936 subsection 6(1) Income Tax Assessment Act 1997 section 995-1 Summary As you do not satisfy any of the four tests of residency, you are not a resident of Australia for tax purposes from DDMM20XX. Detailed reasoning 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 ordi