Residency

Are you a resident of Australia for tax purposes as defined by subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936) from 1 July 20XX?

No. This ruling applies for the following period : Year ended 30 June 20XX The scheme commenced on: XX XX 20XX

You were born in country Y on XX X 19XX. You are a country Y citizen by birth. You emigrated to Australia from country Y in 19XX with your spouse. You became an Australian citizen in 19XX. Your spouse died in 19XX in Australia. You left Australia in 20XX for country W due to medical reasons. You provided your address in country W on your passenger cards from 20XX to 20XX. You were working as an xx in W, Z and T countries. You worked at the Australian Embassy in country W for X years. You are a legal resident of country W under the terms of an agreement. Your 5-year residency permit in country W is due for renewal in XX 20XX. You may renew your residency in country W. Between 20XX and 20XX you returned to Australia once in 20XX for XXX days. Your child and their spouse and children live in city D in Australia. You do not intend returning to Australia except in the event of an emergency. You have been living in country Y since XX XX 20XX. You own a business in country Y as of XX XX 20XX. You entered into 6-month lease on flat in country Y on XX XX 20XX. You have fixed term deposits, business and personal bank accounts in a country Y bank.

You informed the AEC when you departed Australia. You sold your unit in city E in Australia in 20XX, after moving to W. You owned a house in city D from 20XX to 20XX. The city D house was rented out from 20XX. You sold the city D house in 20XX. You have two Australian bank accounts. You have not notified the bank you are a foreign resident. You receive a Commonwealth Superannuation Income Stream.

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

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: Detailed reasoning 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 not a resident of Australia under the resides test for the period 1 July 20XX to 30 June 20XX based on the following: •                     You have lived in W from 20XX to 20XX. •                     You have returned to Australia once between 20XX and 20XX in 20XX for X days. •                     You have been living in country Y since XX XX 20XX. You may still be an Australian resident if you meet the conditions of one of the other tests (the domicile test, 183-day test and Commonwealth superannuation fund test). 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 Y and your domicile of origin is country Y. You immigrated to Australia in 19XX and became an Australian citizen in 19XX. It is considered that you abandoned your domicile of origin in 19XX and acquired a domicile of choice in Australia.

In 20XX you left Australia and took up residence in country W until XX 20XX. You worked as an xx in country W from 20XX until 20XX. Your 5-year residency permit in country W is due for renewal in XX 20XX and you may renew your residency in country W. The duration and continuity of your presence in country W supports the argument that you established a long-term place of abode in country W. While you are a citizen of Australia, this does not outweigh the enduring association and connection you have, and maintain, in country W. It is considered that you abandoned your domicile of choice in Australia and acquired a domicile of choice in country W, as evidenced by relocating to country W in 20XX and becoming a legal resident of country W under the terms of an Agreement that entered into force on XX XX 20XX. As of XX 20XX, you relocated to your domicile of origin in country Y as you do not need a visa to live and work in the country Y. You entered into a lease agreement for a flat in country Y on XX XX 20XX. You purchased a business in country Y on XX XX 20XX. Based on this your domicile has reverted back to your domicile of origin, in country Y, as of XX XX 20XX.

Therefore, your domicile is country Y and you are not a resident of Australia under the domicile test for the 20XX income year. 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 20XX to 20XX income years. Therefore, you are not a resident under this test for the 20XX income year. 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 As you do not satisfy any of the four tests of residency, you are not a resident of Australia for income tax purposes for the year ended XX XX 20XX.