Residency

1 Are you a resident of Australia for taxation purposes?

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

You are a citizen of Australia. You left Australia several years ago and live in Country Z. You moved from Country Z to Country Y a few years ago. You enter Country Y on a visa, which permits you to live and work in Country Y as an Australian national. You are a professional, and you work for Employer Z in Country Y. You intend on being in Country Y for a number of years. You currently own and reside in a house in Country Y. You will move from your current home in Country Y to another permanent home in Country Y when your family return to Australia. You do not intend on returning to Australia on a permanent basis. Your spouse and children will return to Australia in the current year so that your children can complete their education. Your spouse will return to Country Y after the children have graduated from high school. From the current year onward, you will spend less than 180 days in Australia spread across short, infrequent visits, each lasting a few days and solely to spend time with your family. Your family will visit you in Country Y for up to a couple of months each year. You will purchase a home for your families use in Australia.

You will not reside in the property in Australia. You own a car in Country Y and pay Country Y car insurance and hold a Country Y driver's license. You also pay for health insurance in Country Y and have a pension plan in Country Y. You have minimal social connections in Australia, you are not a member of any clubs, or groups in Australia. You actively engage in your local community in Country Y including maintaining your property, participating in local homeowner's association activities, and engaging in professional networks. You worked in the Australia for a number of years and have a superannuation and benefits account. You cannot actively contribute to this account, and you cannot access these funds until a certain age. You will continue to pay tax on your world-wide income in Country Y. Neither you nor your spouse are eligible to contribute to the PSS or the CSS superfunds.

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: 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. Application to your situation You will not be a resident of Australia under the resides test for the relevant period based on the following: •                You have been living and working outside Australia for several years. •                You intend on living and working outside Australia for a number of years. •                Your spouse and children will return to Australia for your children to complete their schooling. •                You will remain living in Country Y and working in Country Y.

•                You will make short trips to Australia to see your family and these trips will not exceed 180 days. •                Your family will visit you in Country Y. 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 You are a citizen of Australia. You have not taken any steps to change your domicile. 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] 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 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 satisfied that you have a permanent place of abode outside Australia in Country Y for the following reasons: •                you have lived and worked outside Australia for several years •                you do not intend on returning to Australia on a permanent basis •                you intend on being in Country Y living and working there for a number of years •                you have a home in Country Y You are not a resident under this 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 in Australia for more than 183 days in any given 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 resident under this test. Conclusion You will not be a resident of Australia for taxation purposes for the relevant income years.