Residency

1: Was the taxpayer a resident of Australian pursuant to subsection 6(1) of the Income Tax Assessment Act 1936 [1] in the year ended 30 June 20xx?

1: No This private ruling applies for the following period: Year ended 30 June 20xx The scheme commences on: 1 July 20xx

This private ruling is based on the facts stated in the description of the scheme that is set out below. If your circumstances are different from these facts, this private ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling. Background: 1.           The taxpayer was born on xx 19xx in Australian state. 2.           In 19xx, the taxpayer married their spouse. Together, the taxpayer and their spouse have one child, who was born in 20xx. 3.           The taxpayer's parent is xx years old and resides in Australia. Their sibling also resides in Australia. Move to the Country A: 4.           The taxpayer lived in X and X until 20xx, when he moved to the Country A with their spouse and child. They moved to Country A on a Tier 1 Investor Visa. a.           Their spouse and child accompanied the taxpayer on a Tier 1 Investor Partner and Tier 1 Investor Child, respectively. 5.           The Country A visas obtained by the taxpayer and their immediate family were initially valid until xxx 20xx. The visas were continually renewed until 20xx when all 3 of them were granted Indefinite Leave to Remain in Country A.

6.           The taxpayer signed a three-year lease in a City (the city Apartment) which they and their immediate family moved into on xx 20xx. The taxpayer's spouse subsequently purchased the city Apartment via a company structure. 7.           The taxpayer and their immediate family continue to reside in the city Apartment. Further, the taxpayer intends to remain in Country A for the foreseeable future while they pursue business opportunities in the region. Consequently, the taxpayer and their immediate family have no intention of moving from their city Apartment whilst they live in Country A. Australian assets and associations 8.           The taxpayer and their spouse maintained a self-managed investment fund (the Fund). As a result of the taxpayer's move to Country A, the Fund's assets were transferred to an APRA regulated fund and the Fund was wound up.

9.           The taxpayer had been a company secretary and public officer of entities in Australia. They resigned from all these positions upon their move to Country A and was replaced by individuals who ordinary reside in Australia. For those companies where they had been the sole director, a minimum of two additional Australian resident directors were appointed, which ensured compliance with the Corporations Act 2001 . 10.        The taxpayer resigned as secretary and public officer to a number entities upon moving to Country A. 11.        The taxpayer and their spouse granted a Power of Attorney to xx, an Australian resident, to act in relation to property transactions on behalf of the partnership of xx. 12.        The taxpayer has a partnership with xx, the xx and xx Partnership (the Partnership). Xx administered the Partnership for several years with the assistance of a locally based accountant until recently, when the administration was taken over by XX.

13.        The former family home was located in xx and is owned by the taxpayer. Upon leaving Australia, the family home was not immediately placed on the market for sale due to the unfavourable market conditions. You explain that there have been a series of refurbishments to the family home to prepare for sale; however, the property has not yet been sold and remains in a 'caretaker mode'. 14.        Upon their departure from Australia in xxx, the taxpayer undertook several actions upon their departure from the country to end their association with Australia which included: a.               writing to a number of Australian professional service providers to inform them that they were moving overseas b.               removing their details from the electoral roll c.               cancelling their Medicare registration and medical insurance d.               advising their medical practitioners to remove them as their patient

e.               notifying Australia Post to redirect all their mail to a post office box, which is collected twice a week by a professional services firm. Important mail is redirected to the taxpayer in Country A and unimportant mail is marked 'moved overseas' and returned to sender, and f.                 advising service providers to liaise with a professional services firm, xx, on all Australian-based assets. 15.        The taxpayer's child's last day of school in Australia was xx 20xx and their school was advised that the family was moving overseas. 16.        Additionally, the taxpayer disposed of the 3 properties when they left Australia. Country A assets and associations: 17.        The taxpayer works as a consultant to corporations based in Country A. 18.        The taxpayer and their family live in their city Apartment and have no intention of living elsewhere while they are in Country A. 19.        In order for the taxpayer to confirm the Country A residency, they invested xx as part of their Tier 1 Investor Visa requirements. They appointed a Country A broker, to manage the Tier 1 investment portfolio for their investment visa.

20.        The taxpayer has also made significant investments in Country A corporations through a mixture of loans and equity holdings. 21.        Moreover, the taxpayer has obtained credit cards. 22.        The taxpayer has: a.               registered as a voter with Country A Electoral Service Office b.               applied for and received confirmation of their entry into Country A taxation system c.               appointed a tax agent and lodges Country A tax returns d.               applied for and recently obtained their Country A driver's licence e.               engaged a Country A accountant and lawyer f.                 taken out private health insurance for themself, their spouse and child, commencing on xx 20xx. This cover has since been cancelled. g.               registered with and used the services of a Country A-based doctor, and h.               together with their family, become a patient of a Country A-based dentist. 23.        Additionally, the taxpayer attended a gym in Country A and has hired a personal trainer. Their spouse became a patron of a Country A charity, with the family attending events of this charity.

24.        You also state that the taxpayer's child attended a Country A school and has now completed their schooling. Travel to Australia: 25.        After leaving Australia xx 20xx, the taxpayer did not return to the country until xx 20xx. The taxpayer returned to Australia for the second time to spend Christmas with their family. 26.        During the year ended 30 June 20xx, the taxpayer returned to Australia on 4 occasions, for the following periods: a.               approximately one week in xx 20xx to celebrate their child's birthday b.               one week in 20xx to spend Christmas with their family c.               17 days in 20xx to attend the weddings, and d.               4 days in xx 20xx to attend the funeral of a family member. 27.        In the subsequent financial years, the taxpayer's pattern of returning to Australia varied, visiting 2 to 5 time per year for varying durations. 28.        During the year ended 30 June 20xx, the taxpayer returned to Australia 3 times, staying a total of 39 nights: a.               16 nights to spend Christmas and holiday with their elderly parent and extended family b.               xx to xx 20xx (15 nights), and

c.               x to x 20xx (8 nights). 29.        When travelling back to Australia, the taxpayer is often accompanied by their spouse and child. On occasion, they visit on their own. During some of their stays in Australia, the taxpayer would visit the former family home to check on its condition and has on occasion stayed there. When in Australia, they usually stay at: a.               their sibling's or parent's house, or b.               at the xx Hotel. 30.        In the future, the taxpayer may continue to make trips to Australia to see their extended family. 31.        The taxpayer has arranged for their Australian family members to visit them in Country A. Previous Private Binding Rulings: 32.        The Commissioner has previously issued to the taxpayer private binding rulings determining that you were not an Australian resident for tax purposes for the following periods: a.               xx xx 20xx to 30 June 20xx (Authorisation number: 1012441263503) b.               1 July 2014 to 30 June 2017 (Authorisation number: 1012660600815) c.               1 July 2017 to 30 June 2018 (Authorisation number: 1051424264703)

d.               1 July 2018 to 30 June 2019 (Authorisation number: 1051641199741) e.               1 July 2019 to 30 June 2020 (Authorisation number: 1051824458301) f.                 1 July 2020 to 30 June 2021 (Authorisation number: 1051992580570) g.               1 July 2021 to 30 June 2022 (Authorisation number: 10520948668994), and h.               1 July 2022 to 30 June 2023 (Authorisation number: 1052235525005).

Question 1: Was the taxpayer a resident of Australian resident pursuant to subsection 6(1) in the year ended 30 June 20xx? Answer 1: No RESIDENCY FOR TAX PURPOSES 1.           Subsection 995-1(1) of the ITAA 1997 provides that a person is an 'Australian resident' if that person is a resident of Australia for the purposes of the Income Tax Assessment Act 1936 (ITAA 1936). 2.           The definition of 'resident' is outlined in subsection 6(1) of the ITAA 1936 as follows: (a) a person, other than a company, who resides in Australia and includes a person: (i)               whose domicile is in Australia, unless the Commissioner is satisfied that his permanent place of abode is outside Australia; (ii)             who has actually been in Australia, continuously or intermittently, during more than one-half of the year of income, unless the Commissioner is satisfied that his usual place of abode is outside Australia and that he does not intend to take up residence in Australia; or (iii)            who is: (A)            a member of the superannuation scheme established by deed under the Superannuation Act 1990 ; or (B)            an eligible employee for the purposes of the

Superannuation Act 1976 ; or (C)            the spouse, or a child under 16, of a person covered by sub-subparagraph (A) or (B). 3.           These statutory tests are commonly referred to as: a.               the 'residence according to ordinary concepts' test b.               the domicile and permanent place of abode test c.               the 183-day test, and d.               the Commonwealth superannuation fund test. 4.           Consequently, only one of the above 4 statutory tests needs to be met to be considered an Australian resident for taxation purposes. Application to your circumstances: 5.           The Commissioner has issued previous rulings to the Taxpayer which explain the conditions that must be satisfied for Australian residency for tax purposes. In these previous rulings, the Commissioner determined that the Taxpayer was not an Australian resident for income tax purposes for periods from xx 20xx through to xx 20xx.

6.           Relevantly, the facts for the year ending 30 June 20xx remain materially the same as those as explained in the previous rulings issued by the Commissioner, apart from the fact the Taxpayer visited Australia 3 times, staying a total of 39 nights. 7.           This fact does not displace the findings in the previous abovementioned rulings that the Taxpayer was not a resident of Australia for tax purposes. Conclusion 8.           The Taxpayer is not a resident of Australia for income tax purposes for the year ending 30 June 20xx under any of the 4 statutory tests. More information For more information about residency, see Taxation Ruling TR 2023/1 Income tax: residency tests for individuals . > [1] All future references are to the Income Tax Assessment Act 1936 , unless otherwise stated.