Residency

1 Were you a resident of Australia for taxation purposes for the relevant income year?

1 No. This ruling applies for the following periods : Year ended 30 June 20XX The scheme commenced on: I July 20XX

You were born in Country Z. You are a citizen of Country Y. You entered Australia on a visa. You came to Australia to work for Employer Z. You commenced this employment shortly after arriving in Australia. You were in Australia intermittently for less than 183 days during the relevant income year. Your family remained in Country Y in the family home. You returned to Country Y to see your family on a regular basis. When you retuned to Country Y you worked remotely for your Australian employer. You had a bank account and super fund in Australia. You lived in shared accommodation in Australia for part of the time you spent here in the relevant income year. You terminated the lease when you went back to Country Y in the relevant income year. You received your Medicare Card early in the relevant income year. Your family joined you in Australia at the end of the next income year. You had all of your belongings shipped to Australia from Country Y. You rented the family home out in Country Y in the next income year. Neither you nor your spouse are eligible to contribute to the PSS or the CSS super funds.

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 . To determine your residency status, it is appropriate to look beyond the period you have spent in (or out of) Australia. Factors from the entire income year and the surrounding income years provide more information to help determine whether you meet one of the residency tests. 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 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. Your behaviour while in Australia 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.

In your case you came to Australia to live and work. However, you returned to Country Y on a regular basis to see your family until they were able to join you in Australia. You lived in shared accommodation in Australia via a lease for part of the time you spent here. You terminated this lease when you returned to Country Y. We have concluded that you were not a resident of Australia for taxation purposes for the relevant income year as you did not have a continuity of association with Australia for this period. 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 Z and your domicile of origin is Country Z. You have Country Y citizenship and are not a citizen or permanent resident of Australia. Your domicile is therefore not Australia for the relevant 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.

You were not in Australia for more than 183 days in the relevant income year. You are therefore not a resident of Australia for taxation purposes under this test for the relevant 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. You are not a resident of Australia for taxation purposes under this test for the relevant income year. 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 relevant income year.