Residency

Are you a resident for tax purposes under subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936) for the 20XX - 20XX income years?

No. Under Taxation Ruling TR 2023/1 Income tax: residency tests for individuals , the 4 tests of residency conclude , you are not a resident of Australia for tax purposes, as you have not been back to Australia for sustainable periods in your X-year absence. You have shown through your actions that while you intended to return to Australia during that period, you lived in Country B consistently as someone who resides there permanently. Whilst there were COVID travel bans during this period, you have only returned to Australia for less than XXX days during any income year for the total period of your absence. Your main residence is rented commercially, and therefore unavailable when you do return, and you have a de-facto spouse and residence in Country B. This ruling applies for the following periods : Year ended XX XXXXX 20XX Year ended XX XXXXX 20XX Year ended XX XXXXX 20XX Year ended XX XXXXX 20XX Year ended XX XXXXX 20XX Year ended XX XXXXX 20XX The scheme commenced on: XX XXXXX 20XX

On the XX XXXXX 19XX, you were born in Country A. In 19XX, you migrated to Australia. In 19XX, you became an Australian Citizen. You do not hold employment in either Australia or the Country B. Your ties to Australia include a residence, Child A and Child B, possessions, driver's licence, bank accounts, rental properties and close social circle of family and friends. You are on a XXXXX visa; this is renewed XXXXX or XX-XXXXX. You can leave the Country B at any time on this visa. On XX XXXXX 20XX, you rented your residence in Australia and left for the Country B, intending to stay for X-X months. Your residence is located at Property A and is being rented in your absence. Your furniture, belongings, whitegoods and personal effects are stored in the garage and shed of property A. You stored these items at your property with the ultimate intention of returning to Australia. From early 20XX until XX XXXXX 20XX, you were stranded in Country B due to the X years of Covid travel restrictions. From XX XXXXX 20XX - XX XXXXX 20XX, you returned home to Australia, however you were not able to cope with the inflationary and restrictive changes in post-Covid Australia.

On XX XXXXX 20XX, you returned to Country B, seeking a calmer atmosphere while awaiting improvements back in Australia. In Country B you live in a no-lease furnished rental accommodation on a need's basis at Property B. You do not have a formal written agreement for the property in Country B. You have an agreed arrangement with the owner in trusted good faith and support during the Covid pandemic until the travel bans were lifted. When you returned to Country B this property was still available for you to rent again. You came to know about this property through word of mouth from associates you met in Country B that know the property owner. This property serves as a stable base from which you travel to various domestic and international destinations periodically. Your domestic travel around Country B is as follows: •       on XX XXXXX 20XX you landed in City B. •       on XX XXXXX 20XX, you travelled to City A. •       from XX XXXXX 20XX - 20XX, there was a X-year Covid pandemic travel ban lockdown. •       on XX XXXXX 20XX - you travelled from City A to Island F, returning to City A on XX XXXXX 20XX.

•       on the XX XXXXX 20XX you travelled from City A to the City B Embassy to renew your passport, returning to City A on XX XXXXX 20XX. •       on XX XXXXX 20XX, you travelled from City A to Island A, returning to City A on XX XXXXX 20XX. •       on XX XXXXX 20XX, you travelled from City A to City B, then to Island B. •       on XX XXXXX 20XX, you travelled from Island B to Island C. •       on the XX XXXXX 20XX you travelled from Island C to City D. •       on the XX XXXXX 20XX you returned to City A. •       on XX XXXXX 20XX you travelled to City E •       on XX XXXXX 20XX, your travelled to City F. •       on XX XXXXX 20XX, you travelled to Island D. •       on XX XXXXXX 20XX, you travelled to Island E •       on XX XXXXX 20XX, you travelled from City A to Island F. •       on XX XXXXX 20XX you travelled from Island F to Island A. •       on XX XXXXX 20XX, you returned to City A Your international travel since being in the Country B is as follows: •       on XX XXXXX 20XX you travelled from City A to City B and onto City G. •       on XX XXXXX 20XX you travelled from City G to City H •       on XX XXXXX 20XX, you returned to City A from City H via City B

•       on XX XXXXX 20XX you travelled from City A to City B, then onto City I. •       on XX XXXXX 20XX you travelled from City I to City J •       on XX XXXXX 20XX, you travelled back to City I, then City B •       on XX XXXXX 20XX, you returned from City B to City A. •       on XX XXXXX 20XX, you travelled from City A to City B and onto City H. •       on XX XXXXX 20XX, you travelled from City H to City B •       on XX XXXXX 20XX, you returned from City B to City A The only belongings you have in Country B are two bags of clothes from Australia and small miscellaneous purchases made in the Country B. You do not have any income or assets outside of Australia. You complete all Australian tax returns and pay utility bills in a timely manner. Further sustaining your connection to Australia. All your assets and income are exclusively tied to Australia. You derive your livelihood through renting out a townhouse, a flat you inherited and your main residence, alongside Pension A. All your finances are managed through Australian banks, accounts where your income is deposited, bills and taxes in Australia are paid electronically.

Your accounts are used for rental payments and Pension A payments, which are deposited monthly into your Australian savings accounts. These funds support your living expenses while travelling abroad and when you return to Australia. You manage all your bank accounts online. Your Australian bank accounts are your main working accounts. You have a normal online savings account and Goal Saver interest bearing accounts. You have a local bank account in Country B, however no other assets outside of Australia. This account is used to facilitate daily living and travel expenses in Country B. You have claimed the townhouse and flat as rental properties, although have not included your main residence. You have no other sources of income, assets or belongings outside of Australia. You do not qualify for Social Security, due to the income and assets tests. On XX XXXXX 20XX, you returned to Australia and are actively seeking clarification of your ATO residency status, through legal advice and this private ruling application. You have a de-facto spouse and no dependants. Moving forward you are wanting to obtain Visa A for your spouse and return to your home in Australia.

On XX XXXXX 20XX, you enquired with Company A regarding the processing of your case for Visa A XXX-XXX for a De-Facto Spouse, you spoke with Manager A. On XX XXXXX 20XX, you had a video call meeting with Lawyer A at Company B, where you confirmed your eligibility, the process and that the base cost would be more than $XX,XXX. You are willing to commit to this amount once your Australian tax obligations are met. Your intention is to return to Australia with your spouse and return to your home. Your spouse has accompanied you to Australia on previous return visits. Your spouse is a citizen of Country B. You live as a couple with your spouse and at times provide assistance to your grown-up children in Australia. You have family and friends in Australia, this is a deeply established network. You are not a member of any clubs or sporting associations. You did not inform Medicare or the Australian Electoral Commission of your departure as you have not left Australia permanently. You do not have Private Health Insurance. You stay with Child A at Property C, when you return to Australia.

Your main residence in Property A is rented to unrelated parties under a normal commercial lease at rental rates. The property is managed by Child A. This is the address you use on all documentation. There is no mortgage on this property, however you do make payments and pay any fees relating the property whilst overseas. Any posted mail is collected by Child A and forwarded to you by email. From XX XXXXX 20XX - Current, you returned to Country B, pending this ruling advice. You are currently taking an extended temporary stay in Country B until you return to Australia. You have not left Australia. You have not advised any Australian financial institutions, including Australian companies you have investments with as you are not a foreign resident. You are not a member of the Public Sector Superannuation Scheme (PSS) established under the Superannuation Act 1990. You are not an eligible member in respect of the Commonwealth Superannuation Scheme (CSS) established under the Superannuation Act 1976. You are not the spouse or child under 16 of a person who is a member of the PSS or an eligible employee in respect of the CSS.

Income Tax Assessment Act 1936 subsection 6(1) Income Tax Assessment Act 1997 section 6-5 Income Tax Assessment Act 1997 subsection 995-1

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 You are not a resident of Australia under the resides test for the period XX XXXXX 20XX - XX XXXXX 20XXbased on the following: Physical Presence • You have been physically present in Australia for a period of XXX days during this time. •       XX XXXXX 20XX - XX XXXXX 20XX = XX days •       XX XXXXX 20XX - XX XXXXX 20XX= XX days •       Since XX XXXXX 20XX until the current day, apart from the short visits to Australia you have resided in Country B. •       Your spouse is a resident of Country B. •       In Country B you live in a no lease furnished rental accommodation on a need's basis.

Intention or purpose - your stated intention is to return to Australia with your de-facto spouse once you have obtained Visa A. •       You intend to return to your residence, in Australia, which is currently rented. •       You identify as a retired Australian citizen and resident. •       You have stored all your furniture, whitegoods and personal effects in your garage and shed, ready for your return to Australia. •       You have a XXXXX visa in Country A, a XXXXX visa which requires renewal every XXXXX or XX- XXXXX. Behaviour •       Your residence in Australia is rented to unrelated parties under a normal commercial lease at rental rates, this property is managed by Child A. •       Whilst you have attempted to return to Australia for longer periods, your medical issues could not handle the changes in standards of living, high inflation and social restrictions since Covid. You have been on medication for this condition since 19XX. •       You have no source of income outside of Australia. In Australia, you earn rental income for your main residence and two rental properties, you also receive income from Pension A.

•       All your assets are exclusively tied to Australia, with all your finances managed through Australian bank accounts. •       Your XX children, and social circle of family and friends are within Australia. •       You have not informed Medicare or the Australian Electoral Commission of your departure from the country as you have not left Australia permanently. •       You do not have Private Health Insurance. •       Whilst your residence is rented you stay with Child A when you return to Australia. •       You hold a local bank account in Country B, however, have no other assets outside of Australia. •       You have completed both domestic and international travel since being in Country B, returning to the rental accommodation each time. •       In Country B you live in a no lease furnished rental accommodation on a need's basis. 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 Australia in 19XX and became an Australian citizen in 19XX. It is considered that you abandoned your domicile of origin and acquired a domicile of choice Australia.

It is considered that you did not abandon your domicile of choice in Australia. You are not entitled to reside in Country B indefinitely and while living in Country B, you only hold a XXXXX Visa which requires renewal every X-months. 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: •       on XX XXXXX 20XX, you left Australia and travelled to Country B, with the intention to stay there for X-X months. •       From 20XX until 20XX, you became stranded in Country B due to the Covid travel bans. •       From XX XXXXX 20XX - XX XXXXX 20XX, you returned to Australia for a period of XX days. •       XX XXXXX 20XX - XX XXXXX 20XX, you returned to and remained in Country B for XXX days.

•       XX XXXXX 20XX - XX XXXXX 20XX you returned to Australia for XX days to address the state of your property, land and income tax concerns. The land tax issues have been successfully resolved and you are working towards resolving the income tax. •       XX XXXXX 20XX - current you have returned to Country B pending this ruling advice outcome. •       You live in a no lease furnished rental accommodation with your de-facto spouse in Country B. •       You are in the process of obtaining Visa A for your spouse, so you can both return to Australia. •       You have a XXXXX Visa requiring renewal every XXXXX or XX-XXXXX for your time in Country B. •       The belongings you have in Country B are two bags of clothes and small miscellaneous purchases. •       You have completed both domestic and international travel whilst living in Country B, returning to the accommodation in City A each time. •       Your residence in Australia is rented to unrelated parties under a normal commercial lease at rental rates, this property is managed by Child A. The property is not available for your use while in Australia. •       You have a local bank account in Country B.

It is not necessary to be living in a particular dwelling in a certain way for your place of abode to be considered permanent, provided that the nature of your presence in a town or country is consistent with both abandoning residency in Australia and living in that town or country in a permanent way. The duration and continuity of your presence in Country B supports the argument that you established a long-term place of abode in Country B. While you are a citizen of Australia, this does not outweigh the enduring association and connection you have, and maintain, in Country B. Whilst the question of a usual place of abode is a question of fact, generally the phrase is interpreted as the abode customarily or commonly when you are physically in a country. Your place of abode does not have to be fixed but must have the attributes of a place of residence or a place to live. Since December 20XX, your usual place of abode has been Country B. Therefore, while you are a citizen of Australia, the Commissioner considers you have established a permanent place of abode outside Australia for tax purposes in Country B since XX XXXXX 20XX.

Therefore, 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 not been present in Australia for 183 days or more during the 20XX - 20XX 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 for the years ended XX XXXXX 20XX - XX XXXXX 20XX.