Residency

1 Are you an Australian resident for tax purpose for the income year 20YY-20YY?

No. Question 2 Are you an Australian resident for tax purpose for the income year 20YY- 20YY? Answer Yes. Question 3 Are you an Australian resident for tax purpose for the income years 20YY-20YY? Answer No. Question 4 Are you an Australian resident for tax purpose for the income year 20YY-20YY? Answer Yes. This ruling applies for the following periods Year ended DDMMYY The scheme commenced on: DDMMYYYY

You were born in Australia and had been a resident for tax purposes prior to meeting your wife and moving to Country B. DDMMYYYY you and your present wife get married overseas. DDMMYYYY, you and your wife move to City A, Australia. DDMMYYYY you and your wife purchased an investment property in Australia. DDMMYYYY, your first child, is born in Australia. Wife and child move overseas, with the intention to make it their home for at least X to X years. DDMMYYYY, you left Australia and transferred your employment overseas as well. Your parents were the only immediate family members remaining in Australia. You sold most of your possessions in Australia including your motor vehicle and moved overseas with the intention to make the place your home for the next X to X years. DDMMYYYY, you applied for permanent residency overseas. DDMMYYYY, you received permanent residency status. DDMMYYYY, your family visited Australia for a X-week holiday. You purchased return tickets and had all intentions to return to your home overseas. In 20YY due to COVID pandemic the Australian Borders were closed and as a result you are forced to make Australia home until the pandemic resolved and border re-opened.

DDMMYYYY, you resigned from your employment and secured employment in Australia. DDMMYYYY, your family rented an apartment in City A. DDMMYYYY you and the family were able to return to your home overseas, you moved back into your home. Once the family returned to your home overseas; you begin contract work for an overseas legal entity and receive payments for work undertaken there. DDMMYYYY, your family rented a house overseas. DDMMYYYY, you purchased land overseas. XXXX, you commenced construction of a house overseas. XXXX, you move into the newly built house. DDMMYYYY, you were offered a job opportunity in Australia and so the family returned to Australia permanently and had the intention make Australia your home for the foreseeable future. You started full time employment in Australia. The House overseas was rented to a tenant on a permanent basis at market rates. You and your family rented a house on returning to Australia. One of your children enrol and start school in Australia. You have never been a member of the PSS or CSS superannuation funds.

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

Issue - Residency Question 1 Are you an Australian resident for tax purpose for the income year 20YY-20YY? Answer No. Question 2 Are you an Australian resident for tax purpose for the income year 20YY- 20YY? Answer Yes. Question 3 Are you an Australian resident for tax purpose for the income years 20YY-20YY? Answer No. Question 4 Are you an Australian resident for tax purpose for the income year 20YY-20YY? Answer Yes. Summary 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 DDMMYY. You satisfy the resides test, domicile test and the 183-day tests of residency and so are a resident of Australia for income tax purposes for the year ended DDMMYY 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 years ended DDMMYY. You satisfy the resides, Domicile and the 183-day tests of residency and so are a resident of Australia for income tax purposes for the year ended DDMMYY. 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/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 For the period of 20YY - 20YY •  You were born in Australia and has been a resident for tax purposes prior to meeting your wife. •  You purchased investment property on DDMMYY. •  DDMMYY Your family left for overseas. They do not leave any other immediate family member other than yourself. who remains in Australia due to work commitments. They take all their possessions with them with the intention of making this overseas country their home for X to X years. •  DDMMYY, you left Australia and transferred your employment overseas. •  Your parents were the only immediate family members remaining in Australia.

•  You sold most of your possessions including your motor vehicle. •  All other possessions were taken with you with the intention of making this overseas country your home for at least X to X years. •  DDMMYY, you receive Permanent Residency. For the period of 20YY-20YY financial year under the ordinary concept test, based on the consideration whether your presence in Australia is usual and settled in contract to temporary and casual. This is usually, considered by the nature, duration and quality of the persons physical presence and an intention to treat Australia as home. Upon, considering all the facts for the financial year 20YY-20YY, it is evident that your move was for the purpose of settling down, working and raising a family there. For the financial year your majority physical presence was in overseas rather than Australia. You applied for permanent residency and was granted the permanent residency in the 20YY-20YY income year. Based on this evidence it is quite clear that you do not pass the resides test for being an Australian resident for the 20YY-20YY income year. For the year 20YY-20YY •  DDMMYY you and your family visited Australia for a X-week holiday.

•  You purchased return tickets and had all intention to return to home. •  In around 20YY a worldwide COVID pandemic was declared. You and your family were unable to return due to COVID-19 and the closing of the Australian Border. You were forced to make Australia home on a temporary basis until the pandemic resolved and borders reopened. •  DDMMYY, you resigned and secures employment in Australia. •  DDMMYY you and your family rented an apartment in City A. •  You were born in Australia and had been a resident for tax purposes prior to meeting your wife and moving overseas

For the year 20YY-20YY, the facts provided by you suggest that in MM of YY you visited Australia for a holiday, although, due to the Pandemic had to rent out an apartment in City A and made Australia your home temporarily, you resigned from your Job in overseas and took up employment in Australia. Therefore, although not voluntarily, you did end up making Australia your home for most of the year. You had physical presence in Australia, by renting out an apartment in City A it is evident that there was intention to reside in Australia. Your social arrangement would not have been evident, due to the pandemic, but you are a citizen of Australia. Add to that, your living arrangement with your family was based out of City A, Australia. Therefore, we would consider you a resident of Australia under the resides test for 20YY-20YY income year. For the income years from 20YY-20YY, 20YY-20YY and 20YY-20YY. •  DDMMYY, you and your family were able to return overseas. once the borders reopened and you moved back into your rented home. Once you family returned home, you began contract work from an entity and receive payments there for work undertaken. •  DDMMYY your family rented a house.

•  DDMMYY you and your family purchased land to build a family home. •  20YY Commenced construction of a house. •  20YY, you and your family moved into newly built house. For the income years from 20YY-20YY, 20YY-20YY and 20YY-20YY, after you returned to overseas, you bought land, constructed a home and showed all intent and purpose alongside behaviour to make it your home. Therefore, we would consider that you were not a resident of Australia for tax purpose under the resides test for the 20YY-20YY income years. For the Income year 20YY-20YY •  DDMMYY you were offered a significant job opportunity in Australia. •  Your family decided to return to Australia permanently and make Australia your home again; •  You transitioned back to full-time employment. •  You rented out the house overseas to a tenant on a permanent basis at market rates. •  DDMMYY you and the family rented a house in Australia. •  DDMMYY One of your children started primary school. •  Since arriving on DDMMYY it was you and the family's intention to become part of the community and buy a home in Australia.

For the Income year 20YY-20YY, you moved to Australia to take up an employment opportunity with an organization. Your house overseas is rented out permanently. Furthermore, you and your family rented a house in Australia and your child started public school in Australia. The intention of your family after having arrived in Australia is to become part of the community and buy a home in Australia and reside here for the foreseeable future. Finally, you also have an investment property which was never sold, whilst you were overseas. Based on the facts provided, we consider you to be a resident of Australia under the resides test for the income year 20YY-20YY. Although the law only requires you to be considered a resident under one test, for completeness the other tests are also considered. 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 the Australia and your domicile of origin is Australia. You are entitled to reside in Australia indefinitely. While you obtained permanent residency status on DDMMYY, it is considered that you did not fully abandon your domicile of origin in Australia. You are entitled to reside in Australia indefinitely and while living in Australia. Therefore, your domicile remains in 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 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 "Place of abode"

The expression "place of abode" refers to a person's residence, where one lives with one's family and sleeps at night (R v. Hammond (1852) 117 E.R. 1477 at p. 1488; Levene v. I.R.C.(1928) A.C.217 and I.R.C. v. Lysaght (1928) A.C.234). In essence, a person's "place of abode" is that person's dwelling place or the physical surroundings in which a person lives. "Permanent"

The leading case on whether a permanent place of abode is outside Australia is F.C. of T. v. Applegate (79 ATC 4307;(1979) 9 ATR 899). The taxpayer, whose domicile was in Australia, had been sent by his employer, a firm of solicitors, to establish a branch office in Vila, New Hebrides. His absence was to be for an indefinite period in the sense that the period was not specified or defined but it was expected that it would be of a substantial length. It was also expected that later he would be recalled to Australia. In fact, he returned to Australia after 2 years, his stay being cut short by illness. The taxpayer claimed that the salary he earned in Vila was exempt from Australian tax being income derived by a non-resident from sources wholly out of Australia. In that case, it was decided that, because the taxpayer could not be considered to have resided in Australia under the ordinary meaning of the word "reside", the extended definition of "resident" contained in paragraph (a)(i) had to be considered. Both the Supreme Court of New South Wales and, on appeal, the Full Court of the Federal Court of Australia held that the taxpayer had a permanent place of abode outside Australia. He was therefore a non-resident in the year of income concerned.

The Federal Court rejected the Commissioner's argument that a permanent place of abode outside Australia required an intention to live outside Australia indefinitely without any intention of returning to live in Australia in the foreseeable future, other than at some remote, albeit specific, point of time. The Court said that the term "permanent" must be interpreted in the context in which it appears. The Court said that in its context in the "resident" definition a permanent place of abode does not have to be "everlasting" or "forever". It means something less than a permanent place of abode in which a person intends to live for the rest of his or her life. For 20YY-20YY The Commissioner is satisfied that your permanent place of abode is outside Australia because: •  DDMMYY, your family, left Australia to go live overseas for the foreseeable future. They do not leave any other immediate family member other than you who remains in Australia due to work commitments. •  They took all their possessions with them with the intention of making overseas their home for at least 4 to 5 years. •  DDMMYY, you left Australia and transferred your employment overseas.

•  Your parents were the only immediate family members remaining in Australia. •  You sold most of your possessions including your motor vehicle. •  All other possessions were taken with you with the intention of making overseas your home for at least 4 to 5 years. •  DDMMYY, you receive Permanent Residency. Therefore, you are not a resident of Australia under the domicile test for the XXXX-XXXX income year. For 20YY-20YY The Commissioner is satisfied that your permanent place of abode is Australia because: •  DDMMYY you and your family visited Australia for a three-week holiday. •  You purchased return tickets and had all intention to return to your home. •  In around 20YY a worldwide COVID pandemic was declared. You and your family were unable to return to your home due to COVID-19 and the closing of the Australian Border. You were forced to make Australia home on a temporary basis until the pandemic resolved and borders reopened. •  DDMMYY, you resigned from your job and secures employment in Australia. •  DDMMYY you and your family rented an apartment in, City A.

•  You were born in Australia and had been a resident for tax purposes prior to meeting your wife and moving to overseas. You are a resident of Australia under the domicile test for the 20YY-20YY income year. For 20YY-20YY The Commissioner is satisfied that your permanent place of abode is outside Australia because: •  DDMMYY, you and your family were able to return overseas once the borders reopened and they moved back into their rented home. Once your family returned home; you began contract work and receive payments for work undertaken. •  DDMMYY your family rented a house. •  DDMMYY you and your family purchased land to build a family home. •  20YY, you commenced construction of a house. •  20YY you and your family move into newly built house You are not a resident of Australia under the domicile test for the 20YY-20YY income years. For 20YY_20YY The Commissioner is satisfied that your permanent place of abode is Australia because: •  DDMMYY you were offered a significant job opportunity in Australia. •  Your family decided to return to Australia permanently and make Australia their home again. •  You transitioned back to full-time employment in Australia.

•  You rented out the house overseas to a tenant on a permanent basis at market rates. •  DDMMYY you and the family rented a house in Australia. •  DDMMYY Your child started primary school at in Australia. You are not a resident of Australia under the domicile test for the 20YY 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 For 20YY-20YY You have not been present in Australia for 183 days or more during the 20YY-20YY income year. Therefore, you are not a resident under this test. For 20YY-20YY You have been in Australia for 183 days or more in the 20YY-20YY income year Therefore, you will be a resident under the 183-day test. For 20YY-20YY You have not been present in Australia for 183 days or more during any of the income years 20YY, 20YY, 20YY or 20YY. Therefore, you are not a resident under this test. For 20YY-20YY

You have been in Australia for 183 days or more in the 20YY-20YY income year, therefore, you will be a resident under this test unless the Commissioner is satisfied that your usual place of abode was outside Australia, and you do not have an intention to take up residence in Australia. 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 for any of the 2020-2025 income years. 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 DDMMYY

You satisfy the resides test, domicile test and the 183-day tests of residency and so are a resident of Australia for income tax purposes for the year ended DDMMYY. 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 years ended DDMMYY. You satisfy the resides, Domicile and the 183-day tests of residency and so are a resident of Australia for income tax purposes for the year ended DDMMYY.