Residency

1 Since XX XXXX 20XX, are you considered an Australian resident for tax purposes?

1 Yes. Question 2 Are you a resident only of Country A under Article XX of the Double Tax Agreement (DTA) between Australia and Country A? Answer 2 No. Question 3 Is the income you derive from your Country A sourced dividends subject to tax in Australia? Answer 3 Yes. Question 4 Is your Australian sourced rental income subject to tax in Australia? Answer 4 Yes. This ruling applies for the following periods: Year ended 30 June 20XX Year ended 30 June 20XX Year ended 30 June 20XX Year ended 30 June 20XX Year ended 30 June 20XX The scheme commenced on: XX XXXX 20XX

You were born in Country A. You are a citizen of Country A. You are a Country A tax resident and lodge tax returns in Country A. You financially support your parents in Country A with your Country A sourced income. You have a spouse and a dependent child. Your child lives with you. On XX XXXX 20XX, you travelled to Australia on a visa A. The visa is a temporary visa valid for XX years. The visa expires XX XXXX 20XX. You have not applied to have this visa extended. You travelled to Australia to provide support and care for your child during their period of study. After their study ends, you will return to Country A. On XX XXXX 20XX, your child commenced study. Your child's study is projected to end in XXXX 20XX. You have not applied for citizenship or permanent residency. Your spouse did not accompany you to Australia and is currently working and living in Country A. During holidays or breaks, your spouse visits you in Australia. You do not financially support your spouse. On XX XXXX 20XX, you solely purchased and moved into Property A in Australia. Property A is valued at $XX. For period A, you travelled to Country A. For period B, you travelled to Country A.

For period C, you travelled to Country A. Since XX XXXX 20XX, you have been renting Property B. Your current lease for Property B is for XX months. You may change accommodation after your lease is up depending on the rental price. You moved from Property A to Property B to be closer to your child's school. In or around XXXX 20XX, you started renting Property A. You received net rental income from the Property A of approximately $XX in the 20XX income year. Your child will move into Property A at an unspecified time in the future. For period D, you travelled to Country A. For period E, you travelled to Country A. For period F, you travelled to Country A. You have an Australian bank account. You received approximately $XX Australian bank interest in the 20XX income year. On XX XXXX 20XX, you paid XX% interest tax in Country A on your 20XX income year Australian bank interest. You will receive approximately $XX Australian bank interest in the 20XX income year. At this time, it is unknown how much you will receive from your Australian bank account in the 20XX income year. You state on incoming and outgoing passenger cards that you are a temporary resident.

You have not developed any professional, social or sporting connections in Australia. You have maintained your professional, social or sporting connections in Country A. You jointly own XX properties in Country A with your spouse. Your parents live in one of the properties and your spouse resides in the other property. Your XX properties in Country A have a combined value of $XX. You receive dividends from a company in Country A. Approximately valued at $XX. You do not own any other assets outside of Australia. You have an Australian and Country A drivers license. You are covered by Australian private health insurance. You currently not employed in Australia. You will be physically in Australia for greater than 183 days each income year for the ruling period. You and your spouse are not a member of the Public Sector Superannuation Scheme (PSS) which was established under the Superannuation Act 1990 or an eligible employee in respect of the Commonwealth Superannuation Scheme (CSS) which was established under the Superannuation Act 1976 .

Income Tax Assessment Act 1936 section 6(1) Income Tax Assessment Act 1997 section 6-5 Income Tax Assessment Act 1997 section 6-20 Income Tax Assessment Act 1997 section 995-1 International Tax Agreements Act 1953

Question 1 Summary You satisfy the resides test and 183-day test of residency and so are a resident of Australia from the date of your arrival. Detailed reasoning 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 incomeyears ended 30 June 20XX, 20XX, 20XX, 20XX and 20XX based on the following: •                     period of physical presence in Australia' ­        In the 20XX income year, you spent greater than 183 days in Australia.

­        In the 20XX income year, you spent greater than 183 days in Australia. ­        In future income years, you intend to spend similar amount of time in Australia. •                     intention or purpose of presence ­        You intend to remain in Australia until your child finishes their study in XXXX 20XX. •                     behaviour while in Australia ­        You solely purchased Property A. ­        You entered a long-term lease at Property B. ­        You have private health insurance. ­        You have maintained your professional, social or sporting connections in Country A. •                     family and business/employment ties ­        You live in Australia with your child. ­        Your spouse and parents live in Country A. ­        You are not employed currently. •                     maintenance and location of assets ­        You solely own the rental Property A. ­        You jointly own XX properties in Country A. ­        You receive Australian bank interest. ­        You own foreign dividends. •                     social and living arrangements. -             You have entered a long-term lease at Property B.

-             Your child lives with you. 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 Country A and your domicile of origin is Country A. You do not intend to apply for Australian citizenship.

It is considered that you did not abandon your domicile of origin in Country A and acquire a domicile of choice in Australia. You are not entitled to reside in Australia indefinitely and while living in Australia, you only held a visa which was valid until XX XXX 20XX. Currently, you have not renewed this visa. Therefore, your domicile is Country A, and 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 will have been in Australia for 183 days or more in the income years ended 30 June 20XX, 20XX, 20XX and 20XX. 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 relevant income years based in the following: •                     You have entered a long-term rental agreement for Property B. •                     You solely own Property A. •                     In the 20XX income year, you spent greater than 183 days in Australia. •                     In the 20XX income year, you spent greater than 183 days in Australia. •                     In future income years, you intend to spend similar amount of time in Australia. 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 for the relevant income years because: •                     You have stated your intention to reside here until your child finishes their study in XXXX 20XX.

•                     After your child concludes their study, you will return to Country A. •                     Your visa expires XX XXXX 20XX. 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 are a resident of Australia under the resides test from the date of your arrival on XX XXXX 20XX. In addition, you satisfy the 183-day test of residency for the relevant income years. Question 2 Summary

The tiebreaker tests in Article XX of the DTA between Australia and Country A apply so that you are deemed to be a resident only of Country A for treaty purposes. The provisions of the DTA will therefore apply on the basis that you are a resident of Country A for tax purposes and not of Australia. Detailed reasoning Double Taxation Agreement (DTA) Subsection 6-5(2) of the Income Tax Assessment Act 1997 (ITAA 1997) states that if you are an Australian resident, your assessable income includes income derived directly or indirectly from all sources, whether in or out of Australia, during the income year, unless that income is exempt income or otherwise not assessable income. It is possible to be a resident for tax purposes of more than one country at the same time in respect of an income year or part of an income year. If this is the case, in determining your liability to pay tax in Australia it is necessary to consider any applicable double tax agreements. Sections 4 and 5 of the International Tax Agreements Act 1953 (Agreements Act) incorporate that Act with the Income Tax Assessment Act 1936 (ITAA 1936) and the Income Tax Assessment Act 1997

(ITAA 1997) and provide that the provisions of a double tax agreement have the force of law. In your case, you are a Country A tax resident and are also a tax resident of Australia from XX XXXX 20XX. Taxation Ruling TR 2001/13 Income tax: Interpreting Australia's Double Tax Agreements discusses the Commissioner's views about interpreting double tax agreements. Paragraph 104 of TR 2001/13 provides that the OECD Model Tax Convention and Commentary will often need to be considered in interpreting double tax agreements. The double tax agreement (the DTA) between Australia and Country A. Article XX of the DTA sets out the tiebreaker rules for residency for individuals. The tiebreaker rules ensure that the individual is only treated as a resident of one country for the purposes of working out liability to tax on their income under the DTA. It is important to note that the tiebreaker rules do not change a taxpayer's residency status for domestic law purposes. Article XX of the DTA states:

3. Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the status of the person shall be determined in accordance with the following rules: (a) the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person; (b) if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State with which the person's economic and personal relations are the closer. Permanent home Permanent home is not defined in the DTA. Therefore, recourse can be made to supplementary materials in order to aid construction. The OECD commentary to the Model Tax Convention provides that in relation to a 'permanent home':

•                     for a home to be permanent, an individual must have arranged and retained it for his or her permanent use as opposed to staying at a particular place under such conditions that it is evident that the stay is intended to be of short duration. The dwelling has to be available at all times continuously and not occasionally for the purposes of a stay, which owing to the reasons for it is necessarily of short duration (e.g. travel for pleasure, business travel, attending a course etc) For instance, a house owned by an individual cannot be considered to be available to that individual during a period when the house has been rented out and effectively handed over to an unrelated party so that the individual no longer has possession of the house and the possibility to stay there. •                     any form of home may be taken into account, including a house or apartment belonging to or rented by the individual and a rented furnished room. We have concluded that you have a permanent home in Country A based on the following considerations: •                     You own XX properties in Country A.

•                     You stated your spouse resides at one of the properties. This property is always available to you. We also have concluded that you have permanent home in Australia based on the following considerations: •                     You solely own Property A. •                     You entered a long-term lease at Property B. This property is always available to you. Therefore, you are deemed to have a permanent home in both Country A and Australia. Personal and economic ties (centre of vital interests) The OECD commentary states that regard should be had to the taxpayer's family and social relations, their political, cultural or other activities, their place of business, the place from which they administer their property etc. As noted in Pike v Commissioner of Taxation [2020] FCAFC 158 at [39], personal factors do not have greater weight than economic factors. In each case it will be a matter of fact and degree whether a taxpayer's personal and economic relations, viewed as a whole, support ties closer to one contracting state over the other contracting state. Your ties to Country A, include the following:

•                     You are a citizen and tax resident of Country A. •                     Your parents and spouse live in Country A. •                     You financially support your parents with your Country A sourced income. •                     You have maintained your professional, social or sporting connections in Country A. •                     You jointly own XX properties with a combined value of approximately $XX. •                     You own dividends from Country A valued approximately $XX. Your ties to Australia include the following: •                     You solely own Property A, which is approximately valued at $XX. •                     You received net rental income from the Property A of approximately $XX in the 20XX income year. •                     You entered a long-term lease at the Cotham property. •                     Your child lives with you and intends to move into Property A in the future. •                     You received approximately $XX Australian bank interest in the 20XX income year. •                     You will approximately receive $XX Australian bank interest in the 20XX income year. Application to your circumstances

We have concluded your personal and economic relations are closer to Australia. Although, your spouse and parents currently reside in Country A, you have significant economic ties to Australia because of family connections, assets and the resulting income streams. Therefore, the tiebreaker tests in Article XX of the DTA between Australia and Country A apply so that you are deemed to be a resident only of Australia for treaty purposes. The provisions of the DTA will therefore apply on the basis that you are a resident of Australia for tax purposes and not of Country A. Question 3 Summary In your case, as you are solely a resident of Australia under the DTA, Australia has the primary taxing right of this income. As the company paying the dividends is a resident of Country A, Country A may also tax the dividends. You can claim a foreign income tax offset for the Country A tax withheld, up to the amount of Australian tax payable on that income. Detailed reasoning Article XX of the DTA deals with dividend income and states:

1. Dividends which are paid by a company which is a resident of a Contracting State and which are beneficially owned by a resident of the other Contracting State may be taxed in that other State. 2. Such dividends may be taxed in the Contracting State of which the company paying the dividends is a resident and according to the laws of that State, but the tax so charged shall not exceed 15 per cent of the gross amount of the dividends. The provisions of this paragraph shall not affect the taxation of the company in respect of the profits out of which the dividends are paid. ... In your case, as you are solely a resident of Australia under the DTA, Australia has the primary taxing right of this income. As the company paying the dividends is a resident of Country A, Country A may also tax the dividends. You can claim a foreign income tax offset for the Country A tax withheld, up to the amount of Australian tax payable on that income. Question 4 Summary In your case, Property A is real property situated in Australia. Australia has the taxing right to the rental income from this property. Detailed reasoning Article XX pf the DTA deals with income from real property and states:

1.           Income from real property may be taxed in the Contracting State in which the real property is situated. ... 4. The provisions of paragraph (1) shall apply to income from the direct use, letting or use in any other form of real property. 5. The provisions of paragraphs (1), (3) and (4) shall also apply to income from real property of an enterprise and to income from real property used for the performance of independent personal services. In your case, Property A is real property situated in Australia. Australia has the taxing right to the rental income from this property.