Residency

Are you a resident of Australia for tax purposes under section 6(1) of the Income Tax Assessment Act 1936 while you are based in Country A?

Yes. This ruling applies for the following periods : Year ended DD MM YY Year ended DD MM YY Year ended DD MM YY Year ending DD MM YY The scheme commenced on: DD MM YY

You were born in Australia and are an Australian citizen. Your registered address is Address A. You live at this address with your parents. All your belongings are still at this address. You are a sole trader and your primary source of income is Occupation A. You conduct your business online and your clients are all in Australia. On DD MM YY you entered Country A on Visa Type A. On DD MM YY you arrived in City A. You spent approximately one week in holiday accommodation before signing a lease on a flat you shared with a flatmate at Address B. Between DD MM YY and DD MM YY you travelled/will travel to XX different locations, over XX trips, staying between X and XX nights at each location. In between trips you returned to City A. On DD MM YY you moved from your previous address in City A to Address B. On DD MM YY you will arrive back in Australia. You joined a sporting team in City A for fitness and social interaction. You were in a competitive sporting team in Australia. You have an Australian driver's licence but no licence in any other country. You do not own property in Australia or in Country A.

You did maintain your Australian private health insurance for one year after departing but have since cancelled it. You did not inform Medicare or the Australian electoral Commission that you were leaving Australia. You have 1 bank account in Country A used for paying rent and utilities. You have 2 Australian bank accounts, 1 of which is where your sole trader income goes to. You are not an eligible employee of the Public Sector Superannuation Scheme (PSS) which was established under the Superannuation Act 1990. You have an open member account with Superannuation Fund A.

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 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 resident of Australia under the resides test for the YY-YY income years based on the following: •       you were born in Australia and have been physically present in Australia since then. •       Your intention in travelling to Country A was to use it as a base for holiday travel to other locations. It was never your intent to settle there. •       Your family, your principal place of residence, and your belongings are all in Australia. •       Your work is based here in Australia, working with Australian clients, but is of a nature that you can perform it online anywhere in the world.

•       You have two Australian bank accounts that you use for your employment income and day to day living. •       You have an Australian driver's licence and a member account in an Australian Superannuation fund. •       You are still registered with Medicare and the Australian Electoral Commission as an Australian resident. It is considered that you have retained a continuity of association with Australia along with an intention to return here and to continue to treat Australia as home. 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 Australia and your domicile of origin is Australia. It is considered that you have not abandoned your domicile of origin in Australia and acquire a domicile of choice in Country A. You were not entitled to reside in Country A indefinitely and while living in Country A, you were there on Visa Type A which is valid until MM YY. 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 not satisfied that your permanent place of abode is outside Australia because: While you did rent accommodation in City A, you did so because it was a more affordable option as a base while you travelled around. You made 17 trips away from your base in City A in the period you were in Country A with the longest stay between trips being X months and the shortest stay between trips being X days. You have not definitely abandoned, in a permanent way, living in Australia. Therefore, you are 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. 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 You were in Australia for 183 days or more in the YY income year.

However, the Commissioner is not satisfied that both: Your usual place of abode was outside of Australia, and You did not intend to reside in Australia. Therefore, you were a resident of Australia under this test for the YY income 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 You satisfy the resides, domicile, and 183-day tests (for the YY income year) of residency and so are a resident of Australia for income tax purposes for the years ended DD MM YY, DD MM YY, DD MM YY, and DD MM YY.