Residency

1 Are you a resident of Australia for tax purposes for the year ended DD MM 20YY?

1 No. Question 2 Are you a resident of Australia for tax purposes from DD MM 20YY? Answer 2 Yes. Question 3 Will your working holiday maker (WHM) income be taxed on the same basis as an Australian resident for the 20YY income year? Answer 3 No. Question 4 Will your WHM income be taxed on the same basis as an Australian resident for the 20YY income year? Answer 4 Yes. This ruling applies for the following periods : Year ended 30 June 20YY Year ended 30 June 20YY The scheme commenced on: 1 July 20YY

Your country of origin is Country A, and you are a citizen of Country A. You are a citizen of Country B. From MM 20YY until MM 20YY, you lived and studied in Country C. From MM 20YY, until MM 20YY, you travelled to several counties for holidays and undertook some study whilst you were in Country D. You travelled to Australia on a WHM visa (Subclass 417). You applied for your WHM visa using your Country A passport. On DD MM 20YY, you arrived in Melbourne, Australia. Prior to arriving in Australia, you lived in Country A and stayed at your siblings house. In MM 20YY you moved to Australia. You rented a room and purchased a vehicle. From MM 20YY until MM 20YY, you worked. From MM 20YY to MM 20YY, you took a break from working and travelled in Australia. From DD MM 20YY until DD MM 20YY, you also travelled to Country D for a holiday. In MM 20YY, you met your partner, who is a citizen of Australia. On DD MM 20YY, you met your partner in person, and you commenced making plans to move interstate to be closer to them.

Between MM 20YY and MM 20YY, you finalised your work. You travelled to Country D between DD MM 20YY and DD MM 20YY and then travelled to Country A between DD MM 20YY and DD MM 20YY, to visit family. Whilst you were in Country A, you applied for your second WHM visa. On DD MM 20YY, you departed Country A and returned to Australia on DD MM 20YY. You had a stopover in Country D. In MM 20YY, your second WHM visa was granted. You stayed at your partner's family home which your partner's parents owned. You left the property when your partner's parents returned from an overseas trip. In MM 20YY you commenced working as a quality control laboratory technician. On DD MM 20YY, you were issued a Country B passport. In MM 20YY, you moved into your current residence, which you are leasing on a long-term basis. You also purchased a vehicle to commute to work. On DD MM 20YY, your third WHM visa was granted. This visa expires on DD MM 20YY. You provided your partner's address the last time that you arrived in Australia and stated that you were on a WHM visa. In Australia, you are a member of some social groups. You have an Australian bank account.

You have a driver's licence in both Country A and Australia. You have stored your personal effects at your relative's home in Country A. You did not own any household effects in Country A. You intend to remain in Australia permanently. You are currently in the process of applying for a partner visa. You have booked a holiday to Country D with your partner for DD MM 20YY to DD MM 20YY. In the coming years, you may visit friends and family in Country A as well as having an occasional holiday overseas with your partner. You and your partner intend to purchase a property together in the future. You are not a resident of any other country for taxation purposes, and you have not lodged any foreign income tax returns. You do not receive any foreign income. You are not a contributing member or the spouse of a contributing member of the Public Sector Superannuation Scheme (PSS) or the Commonwealth Superannuation Scheme (CSS).

Income Tax Assessment Act 1936 subsection 6(1) Income Tax Rates Act 1986 Subsection 3A(1) Income Tax Rates Act 1986 Part I of Schedule 7 Income Tax Rates Act 1986 Part III of Schedule 7 Income Tax Assessment Act 1997 subsection 995-1(1) International Tax Agreements Act 1953

Questions 1 & 2 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 MacquarIREP 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 not a resident of Australia under the resides test up until DD MM 20YY based on the following: •                You arrived in Australia with the intention of taking a working holiday. •                You stayed in temporary accommodation in Australia. •                You travelled frequently around Australia. You are a resident of Australia under the resides test from DD MM 20YY based on the following: •                You are leasing a property in Australia on a long-term basis. •                Your partner lives in Australia.

•                You are continuing to work in Australia with the same employer since MM 20YY. •                You are a member of some social clubs in Australia. •                You intend to remain in Australia for the foreseeable future. •                You are in the process of applying for a partner visa. •                You and your partner intend to purchase a property together. 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. Although you are a citizen of Country B due to birth, it is not considered that you acquired a domicile of choice in Country B as you do not have any significant ties to Country B and do not intend to make Country B your home indefinitely. It is considered that you did not abandon your domicile of origin in Country A and acquire a domicile of choice in Australia. You are not entitled to reside in Australia indefinitely and while living in Australia, you only hold a WHM that expires on DD MM 20YY.

Therefore, your domicile is Country A, and you are not 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 have been in Australia for 183 days or more in the 20YY and 20YY income years. 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. Usual place of abode In the context of the 183-day test, a person's usual place of abode is the place they usually live, and can include a dwelling or a country. A person can have only one usual place of abode under the 183-day test. However, it is also possible that a person does not have a usual place of abode. This is the case for a person who merely travels through various countries without developing any strong connections.

If a person has places of abode both inside and outside Australia, then a comparison may need to be made to determine which is their usual place of abode. When comparing two places of abode of a particular person, we will examine the nature and quality of the use which the person makes of each particular place of abode. It may then be possible to determine which is the usual one, as distinct from the other or others which, while they may be places of abode, are not properly characterised as the person's usual place of abode: Emmett J at [78] in Federal Commissioner of Taxation v Executors of the Estate of Subrahmanyam [2001] FCA 1836. Application to your situation The Commissioner is satisfied that your usual place of abode was outside Australia until DD MM 20YY based on the following: •                You arrived in Australia with the intention of taking a working holiday. •                You stayed in temporary accommodation in Australia. •                You travelled frequently around Australia. The Commissioner is not satisfied that your usual place of abode was outside Australia from DD MM 20YY based on the following:

•                You are leasing a property in Australia on a long-term basis. •                Your partner lives in Australia. •                You are continuing to work in Australia. •                You are a member of some social clubs in Australia. •                You intend to remain in Australia for the foreseeable future. •                You are in the process of applying for a partner visa. •                You and your partner intend to purchase a property together. Intention to take up residency To determine whether you intend to take up residence in Australia, we look at evidence of relevant objective facts. 'Intend to take up residency' does not merely mean intend to stay for a long time. It means intending to live here in such a manner that you would reside here. Application to your situation The Commissioner is satisfied that you did not intend to take up residence in Australia for the 20YY income year because: •                You arrived in Australia with the intention of taking a working holiday. •                You stayed in temporary accommodation in Australia. •                You travelled frequently around Australia.

The Commissioner is satisfied that you did intend to take up residence in Australia for the 20YY income year because: •                You are leasing a property in Australia on a long-term basis. •                Your partner lives in Australia. •                You are continuing to work in Australia. •                You are a member of some social clubs in Australia. •                You intend to remain in Australia for the foreseeable future. •                You are in the process of applying for a partner visa. •                You and your partner intend to purchase a property together. 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 partner, 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 partner 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 for the income year ended 30 June 20YY. You satisfy the resides and the 183-day tests of residency and so are a resident of Australia for income tax purposes for the year ended 30 June 20YY. Questions 3 and 4 Ordinary tax rates for Australian residents for taxation purposes The tax rates for resident taxpayers are contained in Part I of Schedule 7 of the Income Tax Rates Act 1986 (ITRA 1986). Residents are taxed on all of their worldwide income, which means all of the income they earn in Australia and outside Australia is included in their income tax return. Residents are entitled to the benefit of a tax-free threshold under which the first $18,200 of taxable income earned is tax-free.

Taxable income in excess of the tax-free threshold amount will be taxed at progressive rates in accordance with the taxable income earned during each income year. Tax rates for working holiday makers WHM has the meaning given by subsection 3A(1) of the ITRA 1986 as an individual who holds a working holiday visa or Work and Holiday visa or a bridging visa in relation to an application for such a visa. The taxation of WHMs is administered under Part III of Schedule 7 of the ITRA 1986, sometimes referred to as the 'backpacker tax', and has effect for the period you are considered to be a WHM. Income earned in Australia from Australian sources is included in a WHM's taxable income while they are a WHM. From January 2017, WHMs are taxed at a special rate of 15% on their taxable income earned in Australia up to $45,000 in the 2020-21 and later income years, with ordinary tax rates applying to taxable income exceeding that amount. The 15% rate usually applies regardless of whether the WHM is a resident or non-resident. However, as a result of the High Court decision in Addy v Commissioner of Taxation

[2021] HCA 34 (Addy case) some WHMs may be taxed on the same basis as a resident Australian national, rather than the WHM rates that usually apply. This applies where an individual satisfies all of the following: •                are the holder of a Working Holiday visa or Work and Holiday visa •                a resident of Australia for tax purposes for the whole or part of the income year •                from a country which has a non-discrimination article (NDA) in its tax treaty with Australia. Application to your situation For the period of the ruling: •                You are a citizen of Country A •                You are a citizen of Country B. •                You entered Australia on a WHM visa. •                You applied for your WHM visa using your Country A passport. •                Country A is not a country which has an NDA in its tax treaty with Australia. •                Country B is a country which has an NDA in its tax treaty with Australia. •                You are not a resident of Australia for taxation purposes for the 20YY income year. •                You are a resident of Australia for taxation purposes for the 20YY income year.

•                You did not earn any foreign income. Article 25(1) of the Convention between the government of Australia and the Government of the United Kingdom of Great Britain and Northern Ireland for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income and capital gains (the UK agreement)provides that Nationals of the UK shall not be subjected in Australia to any taxation and connected requirements to which nationals of that other state in the same circumstances in respect to residence are or may be subjected. In your case, you are a Country B national as you are a citizen of Country B as you have a right of abode in Country B. You are not an Australian resident for tax purposes for the 20YY income year, therefore, you will not be taxed the same as a resident Australian national and will be subject to the 15% WHM rates. This means you will not be eligible for the tax-free threshold. You are an Australian resident for tax purposes for the 20YY income year, therefore, you will be taxed the same as a resident Australian national and will not be subject to the 15% WHM rates.

Any excess income over the tax-free threshold will be taxed at the marginal tax rate for residents.