1 Are you a resident of Australia pursuant to section 6(1) of the Income Tax Assessment 1936 (ITAA 1936) for the income year ending 30 June XXXX?
No. Question 2 If the answer to question 1 is 'yes', will you be deemed to be a resident solely of XXXX under the tiebreaker rules in Article 4 of the Agreement between XXXX and the XXXX for the avoidance of Double Taxation and the prevention of Fiscal Evasion with respect to taxes on income (the Agreement) in the income year ending 30 June XXXX? Answer Not applicable. This ruling applies for the following Income year ending 30 June XXXX. The scheme commences on: 1 July XXXX.
You were born in X and are a citizen of country X. You and your wife have a son and daughter. Your son and his family, including his children, reside in Australia. You maintain a residence in country X. You own two motor vehicles and park them at your permanent home in country X. All of your personal effects are stored in your home. You have a close family in country X whom you see regularly. You have a number of good friends and social connections in country X You are Chairman of X companies in country X. You have no current plans to permanently move away from country X. You state that you would be unable to do so as Chairman of the companies that you manage there. All your wealth has been generated from your business and investments in country X. Most of your assets are located in country X. You were present in Australia for fewer than 183 days in the x income year. You currently hold a Contributory Parent visa (subclass 143).
You have always stayed with your son at his property in Australia during your trips to Australia. You stay in a guest bedroom. You do not store any personal property or items at your son's property. You have no formal right to occupy your son's house nor any control over it. You and your wife care for your son's three young children whilst they are in Australia. In particular, your wife permanently stays with your son to look after the grandchildren. You have never owned or rented your own accommodation in Australia and you have no intention to do so in the future. You have minor personal effects in Australia, such as clothing and hygiene products, but you but do not own any vehicles or household items (i.e. furniture). You have no social or sporting connections with Australia outside of your family. You do not have utilities except for a mobile phone subscription. You have an Australian driver's licence but you do not own any cars in Australia. You are not a Commonwealth Government of Australia employee for superannuation purposes.
Section 6 Income Tax Assessment Act 1936 Article 4 of the Agreement between XXXX and the XXXX for the avoidance of Double Taxation and the prevention of Fiscal Evasion with respect to taxes on income (the Agreement) in the income year ending 30 June XXXX Does IVA apply to this private ruling? No.
The expressions "resident" or "resident of Australia" for tax purposes are defined in section 6 of the the ITAA 1936. As per Taxation Ruling 2023/1 (TR 2023/1) the definitions contain 4 alternative tests for residency of individuals. A 'resident' or 'resident of Australia' is: (a) a person, other than a company, who resides in Australia (ordinary concepts test) and includes a person: - whose domicile is in Australia, unless the Commissioner is satisfied that the person's permanent place of abode is outside Australia;(domicile test) - 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 the person's usual place of abode is outside Australia and that the person does not intend to take up residency in Australia;(183-day test) or 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 (C) the spouse, or a child under 16, of a person covered by sub-paragraph (A) or (B)... (Commonwealth superannuation fund test)
As you were not in Australia for more than one half of the year of income in the x income year, the 183-day test does not apply to you. As you are not a member of a Commonwealth Superannuation Scheme, the Commonwealth superannuation fund test does not apply to you. The following paragraphs refer to the first 2 tests, namely: the ordinary concepts test and the domicile test. The first test of residency is the "ordinary concepts" or "ordinarily resides" test. Ordinary concepts test As there is no definition of the word 'reside' in Australian income tax law, the ordinary meaning of the word must be considered. The Macquarie Dictionary defines 'reside' as 'to dwell permanently or for a considerable time; have one's abode for a time', and the Shorter Oxford English Dictionary defines it 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'. TR 2023/1 states that:
"...the ordinary concepts test is asking whether your presence in Australia is usual and settled in contrast to temporary and casual. This is informed by both the nature, duration and quality of the person's physical presence and an intention to treat Australia as home. The factors that commonly inform the relevant association with Australia are: - 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, and - social and living arrangements. 21. No single factor is necessarily decisive. The weight given to each factor varies depending on individual circumstances. 22. Many of the factors outlined in paragraph 20 of this Ruling are interrelated. For example, continued family connections are often also accompanied by assets in Australia (such as a house, furniture or a motor vehicle) and behaviour consistent with a familiar routine while in Australia. Temporary visitors often have few assets and few social connections.
23. For these reasons, it is important to consider all the relevant connections together to inform the question of whether you reside in Australia." In assessing the question of residence, it is useful to consider the factors that have been identified as relevant by case law, and which have been set out by the Commissioner in TR 2023/1. Residency is a matter to be determined on a year by-year basis, and events that occurred outside the period in question are also relevant in determining the nature and quality of a person's association with Australia. Period of physical presence in Australia Paragraph 26 of TR 2023/1 states that: "The period of physical presence or length of time in Australia is an important factor when considering whether you reside here, but it is not a determinative factor. Importantly, there is a distinction between 'staying' in Australia and residing in it. Merely staying in Australia is normally insufficient. You must have some connection to Australia that characterises your presence as 'residing' in it. This will be informed by the other factors set out in paragraph 20 of this Ruling." Intention or purpose of presence Paragraph 31 of TR 2023/1 states that:
"Your intention, purpose or reason for being in Australia helps to determine whether you reside here. While you may have multiple reasons, there is usually a main purpose to your presence." Further, paragraph 34 of TR 2023/1 states that: "Staying for the purpose of a short period of work is normally insufficient to establish that you are a resident of Australia. This would not normally demonstrate a connection to Australia that is consistent with residing here. Likewise, coming to Australia for a holiday would not normally demonstrate a connection to Australia that is consistent with residing here, even when supplemented by casual or short-term employment, and even when you spend considerable time in Australia." Behaviour in Australia Paragraph 42 of TR 2023/1 states that: "Your behaviour relevantly includes the way you live as part of the regular order of your life. If the way you live reflects a degree of continuity, routine or habit, coupled with other factors such as intention, it may be consistent with residing in Australia." Family and business / employment ties Paragraphs 46-50 of TR 2023/1 state that:
"46. The presence (or absence) of your family also informs the nature of your connection to Australia. The presence of immediate family in Australia is often accompanied by increased connections to Australia (including period of physical presence, assets such as a family home and motor vehicles, and an intention to return to a place you consider to be your home) and a settled routine consistent with residing in Australia. 47. The term and type of employment or business association you may have will also be relevant, particularly as these will usually be accompanied by other factors such as physical presence and assets in Australia. For example, entering Australia to take up an employment contract or to set up a business often results in behaviour that indicates you reside here. 48. While the test is about whether you reside in Australia, the presence or absence of family, and the extent of business or employment ties in the overseas country will be relevant in giving context to your connection to Australia. Business or employment ties overseas may be less significant if they can be, and are, performed from anywhere in the world.
49. Generally speaking, working overseas but returning to Australia at intervals to an established family and social life will often mean you are still residing in Australia. This is the case even if you spend more time overseas than in Australia in any given income year. Usually, such an arrangement indicates you are residing in Australia and another country. Having an ongoing, deliberate connection to Australia even though you have a connection to another country through your work does not make you a mere visitor to Australia. In such a case, Australia is your home and you are properly regarded as residing here. 50. This can be contrasted with a situation where you leave Australia to work overseas and shift your life overseas. For example, if you, and your family (if you have one), relocate overseas for work for some years establishing a permanent base and a routine overseas consistent with 'living' there, returning only occasionally for short stays while taking leave from work, then, depending on other facts and circumstances, you might not be a resident under the ordinary concepts test." Maintenance and location of assets Paragraph 51-52 of TR 2023/1 states that:
"51. Living in a property in Australia that you own or are purchasing suggests establishment of a home in Australia consistent with residing here. Other assets in Australia, such as motor vehicles, superannuation investments and bank accounts, add further weight to you having established behaviour consistent with residing here. 52. The relevance and weight given to assets must be considered in your individual context. Both the significance of the assets to you and the reasons why they were acquired or maintained will be relevant. For example, opening a bank account in Australia may be no more than a mere convenience in which to deposit locally acquired earnings to fund a holiday. Australian bank accounts held open while you are located overseas could be consistent with maintaining a continuity of association with Australia, but could also be the result of there being no pressing reason to close them." Social and living arrangements Paragraph 53-54 of TR 2023/1 states that:
"53. Your social and living arrangements may indicate you are a resident, particularly when coupled with other factors. Social and living arrangements are the way you interact with your surroundings during your stay in Australia. These arrangements may include joining sporting or community organisations, enrolling children in school, redirecting mail to Australia or committing to a residential lease. 54. It is the routine and habit associated with the social and living arrangements that is indicative of residency rather than the existence of hobbies and recreational pursuits themselves." Conclusion: ordinary concepts test On the basis of the facts in this case and the factors specified above, the Commissioner considers that the weight of considerations points towards the finding that you are not a resident of Australia for the purposes of the ordinary concepts test for the relevant period. Domicile There are 3 types of 'domicile': A 'domicile of origin', which is attributed to each individual at birth.
A 'domicile of dependence', which is relevant where a person (such as a minor) lacks capacity to acquire their own domicile and their domicile is determined by reference to someone else's domicile (such as a parent). A 'domicile of choice', which is the domicile a person, with the capacity to do so, acquires voluntarily. Your domicile of origin is country X, as you were born there. The principle of domicile of dependence does not apply to you. The test in relation to domicile of choice is provided in section 10 of the Domicile Act 1982, which states that '[t]he intention that a person must have in order to acquire a domicile of choice in a country is the intention to make [their] home indefinitely in that country'. TR 2023/1 provides as follows: 60. When considering intention, we have regard to objectively observable conduct. While assertions of intention will always be relevant, if there is a difference between that assertion and the conduct, we may rely on the conduct.
61. Obtaining a visa to migrate to a particular country would be consistent with an intention to make your home indefinitely in that country. A working visa, even for a substantial period of time, would usually not be sufficient evidence of an intention to acquire a new domicile of choice. The facts do not support a finding that you have adopted Australia as your domicile of choice. You have not obtained a visa to migrate to Australia and instead hold a Contributory Parent visa for your visits to Australia to see your family. You have indicated that you intend to renew this visa when it expires. There is in addition no indication that you intend to settle in Australia and to reside here permanently or indefinitely. Your domicile therefore continues to be your domicile of origin in country X. Double tax agreement Question 2 is premised on a determination that the answer to question 1 is 'yes'. However, we have determined that you are not a resident of Australia pursuant to section 6(1) of the ITAA 1936 for the income year ending 30 June XXXX, and therefore question 2 has no application.