Residency

1 Are you an Australian resident for income tax purposes from the scheme commencement date?

1 Yes. This ruling applies for the following period : Year ended 20XX The scheme commenced on: XX XX 20XX

You are a citizen of Australia and a permanent resident of Country B. You moved from Australia to Country C with your family and resided there for X years. You have been continuously employed full-time by various organisations - initially located in Country C. You and your family relocated from Country C to Country B to reside. You and your spouse owned a property in Country B which you occupied as your family home. Your primary location of work was in Country B. You and your family resided continuously in Country B, until your family members relocated to Australia. Your family members relocated to Australia on different dates to seek suitable education opportunities in Australia and the older children moved into university campus housing. Your family resided in a rental property in Australia. Your family purchased furniture and household effects on their return to Australia. Following your family members relocating to Australia, you continued to reside in Country B. You resided continuously in Country B for many years.

You occupied a rental property in Country B with your family until they relocated to Australia, and you remained in the rental property until the lease ended and you relocated to Australia. You and your spouse purchased a property in Australia in XX 20XX, which is held 50/50 as joint tenants. Your spouse and youngest child occupied the Property and then rented a property in Australia. You and your spouse purchased another property in Australia in XX 20XX, which is held 50/50 as joint tenants. Your spouse and youngest child occupied the Property as the family home. You were required to visit each of the countries your employer had an office presence. Your employment mandate included managing the Australian market, and involved regularly visiting customers, as well as the office and team based in Australia. When you travelled to Australia, your itinerary was arranged for fixed date periods and return flights to Country B were pre-booked. You were physically present in Australia due to the COVID-19 travel restrictions in place, intending to return to Country B as soon as was practicable. Your employer instructed you to engage the Australian office during this time.

You undertook various trips to Australia, many for business purposes at the request of your employer. When in Australia for work, you would visit and stay in the property occupied by your family members. You were present in Australia for less than 183 days in the 20XX, and 20XX financial years. In the final X months of your employment in Country B, you were instructed to restructure the Australian business and help onboard your successor, who resided in Australia. Your employment in Country B was terminated on XX XX 20XX. You returned to Country B before permanently relocating to Australia on XX XX 20XX. You were in Australia for more than 183 days in the 20XX financial year. Most of the family's personal effects accumulated whilst living overseas were sold prior to you relocating to Australia and no personal effects were shipped back to Australia. You intended securing other employment in Country B but were unsuccessful. You instead sought work opportunities in Australia. In Australia: •                     Your Medicare card was renewed. •                     You took out a private health insurance policy. •                     Your Australian driver licence was renewed.

•                     You are not a member of a Commonwealth superannuation fund. In Country B: •                     You acquired interest in an investment property. •                     You acquired shares in a private company. •                     You acquired shares in a private company. •                     You participate in a retirement fund.

Income Tax Assessment Act 1936 subsection 6(1) Income Tax Assessment Act 1997 section 6-5 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 ruling period based on the following: •                     You have been physically present in Australia since XX XX 20XX. •                     You ceased your employment and rental lease in Country B and relocated to Australia to seek employment. •                     Your family and business ties are located in Australia. •                     You reside in a property in Australia that you own with your spouse.

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 did not abandon your domicile of origin in Australia and acquired a domicile of choice in Country B. 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: •                     Your rental lease in Country B ended XX XX 20XX. •                     You returned to live in Australia on XX XX 20XX. 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. Application to your situation You had been in Australia for 183 days or more in the relevant income year. 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 not satisfied that your usual place of abode was outside Australia for the ruling period based in the following: •                     Your Country B rental lease ended XX XX 20XX. 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 intend to take up residence in Australia from XX XX 20XX in the 20XX income year because: •                     You reside in a property in Australia that you own with your spouse. •                     You ceased employment in Country B. •                     You sought employment in Australia. •                     You renewed your Medicare, private health insurance and Australian driver's licence. While you have been in Australia for more than 183 days in the relevant income year, this ruling only considers that you are a resident of Australia for tax purposes from the scheme commencement date. Refer to QC 101635 on our website for information on part-year tax-free threshold. 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 and domicile tests of residency and so are a resident of Australia for the income tax purposes for the period 1 July 20YY to 30 June 20XX. We also consider that you satisfy that you satisfy the 183-day test from scheme commencement date.