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)?

Yes. This ruling applies for the following period : Year ending 30 June 20YY The scheme commenced on: DD MM 20YY

You were born in Country A. You entered Australia on a Student Visa. On DD MM 20YY, you were granted permanent residency. On DD MM 20YY, you were granted Australian citizenship. At the time your citizenship was granted you intended to reside in Australia permanently. You are able to live and work in Country A permanently. Your spouse and dependent child are Australian citizens. They are also able to work and live in Country A permanently. From DD MM 20YY, you intend to relocate to Country A permanently to care for your parent. Your family will continue to reside in Australia while you're overseas. They will remain in Australia so that their employment and schooling are not disrupted. You intend for them to join you overseas in 2-3 years. You intend for your family to visit you in Country A for up to 4 weeks on a yearly basis. You intend to return to Australia yearly for 4-5 weeks to see your family. You will not provide financial support to your family while overseas. Your family will remain in the property you jointly own with your spouse. Your immediate plans while in Country A are to solely care for your parent and look for employment opportunities in the future.

You are currently employed by Company A as a Senior Area Coordinator. You are currently on leave. You intend to cease your employment once you relocate. Your spouse is currently employed by Company B. Your dependent child is currently enrolled in an Australian school. You departed Australia on DD MM 20YY to travel to Country A. You intend on returning to Australia briefly then returning to Country A permanently. Between DD MM 20YY and DD MM 20YY, you have spent XX days in Country A. You and your spouse jointly own a property. You currently have no intention of selling your main residence. You and your spouse jointly own an investment property. On DD MM 20YY, you entered a contract to sell your investment property with settlement to occur on DD MM 20YY. You own a third share in the property located in Country A. The property you jointly own in Country A is your ancestral home, which you will reside in when you relocate. After your parent passed you received an inheritance which you keep in an Australian bank account. You jointly hold an Australian savings account with your spouse. You own a vehicle in Australia in your own name. You hold an Australian superannuation fund.

You have not advised your private health insurance provider to have your policy suspended or cancelled. You intend to inform the Australian Electoral Commission of your departure to be removed from the electoral role. You will not be a member of any social, sporting or community groups in Country A. You will not retain any memberships of social, sporting or community groups in Australia. 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.

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

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/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 20YY income year based on the following: • period of physical presence in Australia

You have resided in Australian, as a citizen, for several years. During the ruling period you will make infrequent trips to see your family, demonstrating a continued connection with Australia. • intention or purpose of presence Residency is not shed when departing Australia merely by asserting an intention to never live in Australia again. You hold a longer-term intention to ultimately live overseas with your family, but circumstances mean your family will remain living in Australia and you will split your time between caring for your parent overseas and returning to Australia to live with your family until those circumstances change. • behaviour while in Australia During your trips to Australia, your behaviour reflects a degree of continuity, routine or habit. You maintain a property in Australia which you jointly own, you spouse is employed in Australia and your dependent child is enrolled in school. This would demonstrate behaviour consistent with residing here. • family, and business or employment ties

Residing or 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 does not make you a mere visitor to Australia. In such a case, Australia is your home and you are regarded as residing here. • maintenance and location of assets You jointly own properties in Australia and overseas. 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. • social and living arrangements Your social and living arrangements may indicate you are a resident, particularly when coupled with other factors. These arrangements include enrolling your dependent child in school and maintaining your main residence for your spouse and child to reside in.

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 A and your domicile of origin is Country A. You immigrated to Australia and became an Australian citizen on DD MM 20YY.

It is considered that you abandoned your domicile of origin and acquired a domicile of choice in 20YY. You obtained citizenship in Australia and you intended to live there 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] FCA 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, i.e. 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 not satisfied that your permanent place of abode is outside Australia because: •                 you have maintained your assets in Australia. •                 your spouse and dependent child continue to reside in Australia. •                 your dependent child is enrolled in school in Australia. •                 your spouse is currently employed in Australia. •                 you have no intention of renouncing your Australian citizenship. •                 your reason for travelling overseas is to care for your elderly parent, not necessarily to work and reside overseas indefinitely.

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 will not be 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 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 You satisfy the Resides and Domicile tests of residency and so are a resident of Australia for income tax purposes for the year ended 30 June 20YY.