Residency

Are you a resident of Australia for taxation purposes?

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

Your country of origin is Country A. You are a citizen of Country A. You have maintained a continuous and settled life in the Country B since 20XX and were issued a green card in 20XX. You are employed full-time in Country B, where your onshore presence is required. You were granted an Australian Permanent Residency Visa (subclass 189), and it expires in 20XX. You do not intend to establish a personal residence in Australia. You intend to continue living and working in Country B. Your professional, living and social connections are in Country B. Your family relocated from the Country B to Australia temporarily while your spouse studies a 3-year Bachelor program. You accompanied your family to assist with their settlement and help secure rental accommodation. You were present in Australia for less than 183 days in the relevant income year. Due to difficulty securing appropriate rental accommodation, you purchased a property to support your family's temporary housing needs. You and your spouse appear on the contract of sale however your name is on the title for logistical reasons only, as the loan was based on your Country B income.

All utility bills and related household accounts for the purchased family home in Australia are held in your spouse's name. When you returned to Country B, after your family settled in Australia, you rented an apartment on a short-term lease. Then you stayed in Airbnb accommodation. Currently, you have a rental lease located in Country B. You opened a bank account in Australia with your residential address recorded as Country B however, the "tax residency" field may have been set to Australia where you provisionally filed as a resident for a short period while assessing the correct treatment of your residency position. The account is used solely to support transitional financial needs of your family during their transition to Australia. The account activity reflects isolated personal transfers from your Country B income to support your family's settlement in Australia and is not used to receive any salary or business income.

You obtained an Australian TFN to support the practical needs of your dependent family members during their initial settlement in Australia such as, assisting in the rental application and the purchase of a family home for your spouse and children. You have not used the TFN to undertake employment, operate a business, or derive Australian source income. You obtained an Australian drivers' licence to support the practical needs of your dependent family members during their initial settlement and it was required to satisfy identity verification requirements linked to residential arrangements. You enrolled in Medicare to enable your family to access medical services in Australia. You have not relied on Medicare for any personal medical treatment, and you continue to hold employer provided health insurance in Country B. You started an Australian Superannuation account and have made self-funded contributions. No Australian employer contributions were made, and you don't intend to make further contributions whilst employed in Country B. You did this as a contingency in case the ATO were to regard you as a tax resident and not to shift your retirement saving base to Australia.

You are not a member of the Public Sector Superannuation Scheme (PSS). You are not an eligible employee in respect of the Commonwealth Superannuation Scheme (CSS). You are not the spouse of a person who is a member of the PSS or an eligible employee in respect of the CSS. You intend to relocate your children back to Country B to live with you at the end of the year to resume their schooling in Country B while your spouse completes the course of study.

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. Application to your situation You are not a resident of Australia under the resides test for the relevant income year based on the following: •                 You were present in Australia for less than 183 days in the relevant income year to visit your immediate family. •                 You maintain professional, living and social connections in Country B. •                 You are employed full-time in Country B, where your onshore presence is required. •                 You intend to maintain Country B as your main location of residence. 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 Country A and your domicile of origin is Country A. You immigrated to Country B in 20XX. You have maintained a continuous and settled life in Country B since 20XX and were issued a green card in 20XX. It is considered that you abandoned your domicile of origin in Country A and acquired a domicile of choice in Country B. Despite obtaining an Australian Permanent Residency Visa (subclass 189), you have remained in Country B for almost all of the relevant income year. You have stated you intend to continue living and working in the Country B.

Therefore, at this stage your domicile of choice remains Country B, and you are not a resident of Australia under the domicile test. Therefore, your domicile is Country B, and you are not a resident of Australia under the domicile test. 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 have maintained leased and rented apartments in Country B continuously during the relevant income year. You currently have a leased apartment. •                 You maintain professional, living and social connections in the Country B. •                 Your belongings remain in the Country B. •                 You intend to continue living and working in the Country B.

•                 Despite having purchased a property in Australia you only spent less than 183 days in Australia during the relevant income year. Therefore, you are not a resident of Australia under the domicile test 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. Application to your situation You have not been present in Australia for 183 days or more for the relevant income year. Therefore, you are not a resident under this test for the relevant 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. 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 for the relevant income year. This decision is based on the facts relating to your particular situation and year under consideration. This cannot automatically be applied to other taxpayers or other years. Each situation must be considered on a case-by-case basis by weighing up the importance of the various factors.