Residency

Are you a resident of Australia for tax purposes from DD MM 20YY?

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

You were born in Australia and are a citizen of Australia. You are a citizen of Country A as your parent was born in Country A. In 20YY, you applied for Country A citizenship and a Country A passport. From 20YY to 20YY, you worked in Country A. Your Country A passport allowed you to work without a visa. You have no plans to relocate to the Country A now or any time in the future. You have a spouse who has lived in Australia since 20YY and is a permanent resident of Australia. In early 20YY, you moved into a property (your main residence) with your spouse. Your spouse solely owns the property which was purchased prior to meeting you. From DD MM 20YY to DD MM 20YY, you and your spouse travelled to Continent A for a holiday for several weeks. On DD MM 20YY, you accepted a job offer based in Country B. A requirement for your role was that you relocate permanently to Country B and become a tax resident there. You accepted the role in Country B to progress your career and to improve your long-term financial position. You resigned from your role at Company A in Australia and your final day of work was on DD MM 20YY.

On DD MM 20YY, you departed Australia and moved to Country B. You stayed in an apartment until DD MM 20YY. You made monthly bookings every X months as it was economical for you to stay in a hotel by yourself before your family arrived. Your employer provided you with relocation support. When you departed Australia, your spouse was expecting their a child. Your spouse experienced several health issues and received medical advice that it would be best to remain in Australia until the child was born. You both agreed that your spouse would accompany you in Country B after the child was born and you had received medical advice that it was safe for your spouse to fly. Your spouse continued to live in the property that had been both of your main residence in Australia. On DD MM 20YY, you arrived in Australia for the birth of your child. You had booked this return flight to Australia on DD MM 20YY. Your plan was to be in Australia temporarily for the birth of your child.

Whilst you were in Australia, you stayed at your main residence. Your employer allowed this, although your work contract specifies that you are required to physically be present in Country B. During this time, you did not rent a room at the hotel you had been staying at in Country B and left your personal belongings with a colleague. On DD MM 20YY, your child was born. On DD MM 20YY, you returned to Country B. Your spouse, and your child moved out of the main residence (family home) in Australia. While your spouse remained in Australia, they accessed funds from a joint bank account that was in both of your names. You had saved these funds prior to departing for Country B. You did not transfer any money to this account while your spouse and your child were in Australia. On DD MM 20YY, you entered into a lease agreement for an apartment in Country B. On this date, your spouse also appointed a real estate agent to lease the main residence. The property was available for rent shortly after. During MM 20YY, you purchased a vehicle for you and your family. You also purchased some personal and household effects. On DD MM 20YY, your spouse and your child moved to Country B.

On DD MM 20YY, the main residence in Australia was leased and has been occupied since DD MM 20YY. On DD MM 20YY to DD MM 20YY, you, your spouse and your child flew to Australia for a holiday and stayed with your parents. You all departed on DD MM 2024. In MM 20YY, you renewed the lease on your apartment in Country B. On DD MM 20YY to DD MM 20YY, you, your spouse and your child travelled to Country C for a holiday. On DD MM 20YY to DD MM 20YY, you, your spouse and your child travelled to Country D for a holiday. On DD MM 20YY, you, your spouse and your child travelled to Australia for a holiday. You were scheduled to depart Australia on DD MM 20YY. You are the sole owner of a property in Australia which you purchased prior to meeting your spouse. You lived in this property for some time prior to moving into your main residence with your spouse. This property was first rented to an unrelated party on DD MM 20YY. You have a bank account in Australia. You have notified banks in Australia that you live in Country B. You have a superannuation fund in Australia. You sold all your shareholdings shortly after moving to Country B.

Aside from your rental property, you do not intend to earn any other income from Australian sources. You and your spouse suspended your private health insurance policies in Australia. You have removed your name from the Australian electoral role as you intend to be in Country B long term. You have Medicare in Australia; however, you have not used it since moving overseas. You do not have any personal items in Australia. Your personal items are in Country B. You have a resident identification card in Country B that expired. You renewed this visa, and it expires on DD MM 20YY. You have a mobile phone number in Country B. You have a bank account in Country B. You have term deposits in Country B. You have made friends in Country B and have been involved in the local and business community. Your employer provides you and your family with a return trip to Australia each year. You are a member of a social and professional group in Country B. You play sport in Country B on an occasional basis as part of an informal group. You have comprehensive international health insurance in Country B.

You have a driver's licence in both Australia and Country B. Your Australian driver's licence was last renewed whilst you were still living in Australia. You intend to live in Country B with your family indefinitely. You intend to visit Australia once per year for a holiday to see family and friends. You intend to visit for several weeks each time. When completing incoming and outgoing passenger cards, you state that you are a resident of Country B and provide your address in Country B. You intend to apply for a long-term visa which would allow you reside in Country B for several years. Neither you or your spouse are an eligible contributing member of the Commonwealth Superannuation Scheme or the Public Sector Superannuation Scheme.

Income Tax Assessment Act 1936 Subsection 6(1) Income Tax Assessment Act 1997 Subsection 995-1(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 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 from DD MM 20YY based on the following: •                 You returned to Country B on DD MM 20YY following the birth of your child on DD MM 20YY. •                 You entered a lease for a property in Country B on DD MM 20YY and renewed it in MM 20YY. •                 You purchased personal and household effects for your property in Country B. •                 You are undertaking your work from Country B. •                 You have a bank account in the Country B.

•                 You have a driver's licence in Country B. •                 You are a member of a social and professional group in Country B. •                 Your spouse and your child moved to Country B on DD MM 20YY. •                 Your main residence in Australia was leased on DD MM 20YY and has been occupied since DD MM 20YY. •                 You do not have any personal effects in Australia. •                 You have removed your name from the Australian electoral role. •                 You intend to remain in Country B for the foreseeable future with your family. 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 Australia and your domicile of origin is Australia. It is considered that you did not abandon your domicile of origin in Australia and acquire a domicile of choice in Country B. You were not entitled to reside in Country B indefinitely and while living in Country B, you only hold a visa which is valid until DD MM 20YY. 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 your permanent place of abode is outside Australia because: •                 You returned to Country B following the birth of your child. •                 You leased a property in Country B on DD MM 20YY. •                 Your spouse and child moved to Country B on DD MM 20YY. •                 You renewed your lease on a property in Country B in MM 20YY. •                 You purchased personal and household effects for your property in Country B. •                 You are undertaking your work from Country B. •                 You have a bank account in Country B. •                 You have a driver's licence in Country B. •                 You are a member of a social and professional group in Country B. •                 Your main residence in Australia was available for rent shortly after DD MM 20YY and leased on DD MM 20YY, being occupied since DD MM 20YY. •                 You do not have any personal effects in Australia.

•                 You have removed your name from the Australian electoral role. •                 You intend to remain in Country B for the foreseeable future with your family. Therefore, you are not a resident of Australia under the domicile test from DD MM 20YY. 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 20YY and 20YY income years and you do not intend to be present in Australia for 183 days or more during the 20YY and 20YY income years. 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 As you do not satisfy any of the four tests of residency, you are not a resident of Australia for income tax purposes from DD MM 20YY.