Are you a resident of Australia for taxation purposes under subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936) for the period DDMMYYYY to DDMMYYYY?
Yes. This ruling applies for the following periods : The period commencing DDMMYYYY to 30 June YYYY The period commencing 1 July YYYY to DDMMYYYY The scheme commenced on: DDMMYYYY
You were born in Australia, and you are a citizen of Australia only. You grew up and were educated in Australia. You have a certain profession. You moved to Country X to further your profession and work in that profession some years ago. You had a certain type of visa that allowed you to work there. The majority of those visa's last for a certain number of years but are often time dependant on the project. Whilst you were based in Country X, you had long-term rental leases, and during that time, Country X was considered your permanent place of abode. You were a tax resident of Country X during this time. You ceased your long-term lease in Country X at a certain time and lived in accommodation provided by your employer or stayed with friends up until you departed Country X and returned to Australia a few months later. You will not fulfill the number of days in the Country X tax year to be a Country X tax resident. You purchased a house in Australia, and this is where you live when in Australia. You intend to live indefinitely in Australia and will only travel overseas for work or for holiday purposes.
You do not rent out your Australian home when you are overseas working in your profession, it is left vacant. You hold bank accounts in Australia. Your only assets in Country X are bank accounts to transact business. You work with multiple employers and your work is sporadic. You do not have a spouse. You do not have any children. Your parents live in Australia and are citizens of Australia. When you refer to your family, your parents are who you mean. You did not apply for citizenship or permanent residency in Country X and do not intend to. You hold an Australian driver's license and a Country X driver's license. You have an Australian Medicare card. You will apply to be on the Australian Electoral roll. You will apply for an Australian private health insurance policy. As from the date you returned to Australia, when completing incoming and outgoing passenger cards you state your residential address in Australia. The following is a timeline of your movements since you returned to Australia to live permanently. Table 1: Timeline of movements From date To date Country/Countries visited Days in each country Reason for travel DDMMYYYY DDMMYYYY Australia 18 Back to Australia DDMMYYYY
DDMMYYYY Country X 1 Transit DDMMYYYY DDMMYYYY Country Y 86 Work DDMMYYYY DDMMYYYY Australia 10 Work DDMMYYYY DDMMYYYY Country X 6 Short Stay DDMMYYYY DDMMYYYY Country Z unknown Work Your next work will be in Country X, but at this stage you do not know the dates. Going forward the majority of your work will be in multiple countries where accommodation will be provided by your employer. You applied for a 'Certificate of residency and certification of overseas tax relief for individuals' in relation to your work in Country Z and Country X. You have ticked other countries, just in case of the possibility of you working in those countries. You have not been a Commonwealth of Australia Government employee for superannuation purposes. You are not a member of the public sector superannuation scheme nor are you an eligible employee in respect of the Commonwealth Superannuation Scheme. Assumptions For the purposes of this ruling, it is assumed that the facts of your situation as outline above will not materially change during the ruling period and will continue until DDMMYYYY at least.
Income Tax Assessment Act 1936 subsection 6(1) Income Tax Assessment Act 1997 subsection 995-1(1)
Residency of Australia for taxation purposes Question Are you a resident of Australia for taxation purposes under subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936) for the period DDMMYYYY to DDMMYYYY? Summary You are a resident of Australia as defined in section 6(1) of the ITAA 1936 for the period DDMMYYYY to DDMMYYYY Detailed reasoning Overview of the law 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 or 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 for the period DDMMYYYY to DDMMYYYY based on the following: • You are a Resident and Citizen of Australia. • You returned to Australia on DDMMYYYY to live permanently and you live in a property you purchased in Australia, unless you are working overseas. • You hold an Australian Drivers Licence. • You have an Australian Medicare card. • You will obtain Australian private health insurance. • You will re-apply to be on the Australian Electoral roll. • You have bank accounts in Australia. • Your family (parents) live 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 Australia and your domicile of origin is Australia.
It is considered that you did not abandon your domicile of origin in Australia and acquire a domicile of choice in Country X because whilst you did have a certain visa type, this did not entitle you to reside in Country X indefinitely. Therefore, your domicile is Australia. Permanent place of abode If you have an Australian domicile, you are an Australian resident unless the Commissioner is satisfied that your permanent place of abode is outside Australia. This is a question of fact to be determined in light of all the facts and circumstances of each case. 'Permanent' does not mean everlasting or forever, but it is to be distinguished from temporary or transitory. The phrase 'permanent place of abode' calls for a consideration of the physical surroundings in which you live, extending to a town or country. It does not extend to more than one country, or a region of the world. The Full Federal Court in Harding v Commissioner of Taxation [2019] FCAFC 29 held at paragraphs 36 and 40 that key considerations in determining whether a taxpayer has their permanent place of abode outside Australia are:
• whether the taxpayer has definitely abandoned, in a permanent way, living in Australia • whether the taxpayer is living in a town, city, region or country in a permanent way. The Commissioner considers the following factors relevant to whether a taxpayer's permanent place of abode is outside Australia: • the intended and actual length of the taxpayer's stay in the overseas country • whether the taxpayer intended to stay in the overseas country only temporarily and then to move on to another country or to return to Australia at some definite point in time • whether the taxpayer has established a home (in the sense of dwelling place; a house or other shelter that is the fixed residence of a person, a family, or a household), outside Australia • whether any residence or place of abode exists in Australia or has been abandoned because of the overseas absence • the duration and continuity of the taxpayer's presence in the overseas country
• the durability of association that the person has with a particular place in Australia, that is, maintaining assets in Australia, informing government departments such as the Department of Social Security that he or she is leaving permanently and that family allowance payments should be stopped, place of education of the taxpayer's children, family ties and so on. As with the factors under the resides test, no one single factor is decisive, and the weight given to each factor depends on the individual circumstances. Application to your situation The Commissioner is satisfied that your permanent place of abode is not outside Australia as from DDMMYYYY because: • You abandoned your Country X permanent place of abode, and then lived on work placements and with a friend until you arrived in Australia on DDMMYYYY. • You purchased a home in Australia to live in as your home, when you are not working overseas, and this property is left vacant whilst you are absent. It is available for use as your home at any time. Therefore, you are a resident of Australia 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 YYYY income year and may not be present in Australia for 183 days or more during the following 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 spouse, 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 spouse of such a person, or a child under 16 of such a person. Therefore, you are not a resident under this test. Conclusion Considering your profession and your intention to treat Australia, and specifically the property in Australia as your home, and the factors set out in TR 2023/1, you satisfy the resides and domicile tests of residency and so are a resident of Australia as defined in section 6(1) of the ITAA 1936 for the period DDMMYYYY to DDMMYYYY.