Residency for tax purposes

Are you a resident of Australia for tax purposes?

Yes This ruling applies for the following periods : Income year ended 30 June 20YY Income year ended 30 June 20YY Income year ended 30 June 20YY The scheme commenced on: 1 July 20YY

Background You first arrived in Australia on DD MM 20YY and have since made multiple entries under a visa. While you have temporarily departed Australia during this period, you have maintained a stable living arrangement and habitually resided in Australia for extended periods. Your current visa permits multiple entries prior to its expiry. You intend to depart Australia in mid-MM 20YY and re-enter in early MM 20YY, after which you plan to remain in Australia for a further X months without leaving the country. You were not aware that you might have tax obligations while staying in Australia under a visitor visa. As a result, you did not lodge tax returns for the income years ending 30 June 20YY and 30 June 20YY. You only became aware of the potential requirement to lodge tax returns in 20YY after being prompted by your bank. You are now seeking clarification from the ATO regarding your tax residency status and any obligations you may have had during this period. You reside with your relative and their family in their Australia dwelling. You consider yourself as ordinarily residing in Australia since MM 20YY. Basic facts Your date of birth is DD MM 19YY.

Your country of origin is a foreign country. You are a citizen of the foreign country. You are not a citizen of any other country. Between 20YY and 20YY, you primarily resided in the foreign country as all your family members were then residing in that country due to COVID-19. During that time, you had not travelled due to the restrictions. In MM 20YY, you came to Australia. Since then, you went on a few short trips overseas. You have provided a copy of your official travel record from the Department of Home Affairs. You intend to spend most of your time in Australia in the years going forward as your relative, who is practically your closest family member, is habitually residing in Australia. You intend to remain in Australia on your visa as long as you are permitted. You may also go on some short vacations during the period. As a retiree, your primary purpose for travel is to explore different parts of the world while you are still in good health and financially able to do so. You aim to broaden your horizons through cultural experiences and also take the opportunity to visit friends who have relocated to various countries.

When completing the incoming passenger card and visa application documents, you indicate that you are a citizen of the foreign country. For the residential address section, you provide a foreign address. This is the residence of another relative, where you have been staying when you return to a foreign country. You are a legal resident of the foreign country and was a tax resident there prior to your retirement. Since retiring, you have had no assessable income and therefore no longer have any tax obligations in the foreign country. You are not a resident of any other foreign country for taxation purposes. Your intentions You have not applied to extend the end date of your current visa as it is valid until MM 20YY. In the past, you have always submitted fresh applications before expiry of your limit of stay. Since your arrival in Australia, you have not applied for citizenship or permanent residency. However, you genuinely wish to immigrate and reside in Australia permanently. You intend to apply for a different type of visa once eligible.

In the long run, you intend to reside in Australia permanently. You plan to apply for the different type of visa as soon as you meet the eligibility requirements. As mentioned above, you retired in MM 20YY and have not had any income since then. According to the laws of the foreign country, you were not required to lodge any income tax returns while living in Australia. You have a much closer relationship with your relative and their family in Australia compared to your relative in foreign country. If possible, you hope to apply for residency in Australia in the future. Your intention is to make Australia your long-term home, and to travel to other countries only for tourism or to visit friends. Family and social connections You do not have a spouse. You have been divorced since 20YY. You do not have any dependents. You have one child, aged X, who is married and currently resides in another foreign country. Following your divorce, they lived with the other parent, and over time you became estranged. You have had no contact since your last meeting in 20YY. Apart from your relative in Australia and their family, you do not have any other family members residing in Australia.

Your relative in Australia and their family, are not always able to travel overseas due to their other obligations, including employment, caring for their schooling children and also minding their three cats. However, you all live under the same roof and you did travel with them locally in Australia. Your relative and their family all reside in Australia permanently. They are Australian citizens. As mentioned above, your married child has migrated to another foreign country, and you have had no contact for many years. Therefore, you do not provide them with any financial support. Your relative in the foreign country is approaching retirement and is financially self-sufficient, so you do not need to support them either. As a result, you do not financially support any family members living outside Australia. Your financial situation is stable, and your retirement income in the foreign country is sufficient to meet your personal needs. Your relative in the foreign country resides in a privately owned apartment in the foreign country. You have no information as to the current accommodation of your child.

You regularly attend family gatherings with your relative and their friends, whom you have come to know well since arriving in Australia. In addition, you have reconnected with former classmates, students, and friends who have also migrated from the foreign country, forming your own social network here. You actively participated in religious activities since 20YY. You do not maintain any professional, social, or sporting connections elsewhere, other than in Australia. You do not hold a driver's license in any country. You use public transport in Australia. Accommodation and assets Whenever you return to the foreign country, you stay with various individuals, including relatives and friends. They reside in various locations across the foreign country. In each case, you are provided with a private room in their homes. When travelling outside of the foreign country, you stay in hotels or a friend's place. Prior to your arrival in Australia, you lived alone in a rented apartment in the foreign country. You do not own any property in the foreign country or in any other country.

You maintain two savings accounts in the foreign country. You do not have any investments, property or own any other assets outside of Australia. You have a savings account with a bank in Australia. You have no other assets including properties or investments. Your mailing address is your relative's home address in Australia. Income and employment You are a retiree and do not receive any income from sources outside of Australia. You have not undertaken any employment overseas since retiring in 20YY. You have not undertaken any employment in Australia. In accordance with the conditions of your visa, you are not permitted to engage in any form of employment, whether paid or unpaid, including remote work. As a retiree, you do not hold any employment position or job in any overseas country. No role has been held open for you, and you have no ongoing professional obligations outside Australia. You have not enrolled in any courses of study in Australia or elsewhere. You do not have any investments or financial arrangements with any Australian financial institutions or companies that would require notification of foreign residency status for non-resident withholding tax purposes.

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

Summary You were a resident of Australia for tax purposes for the period of the ruling. 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 ... [W]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 income years ended 30 June 20YY, 20YY and 20YY based on the following: •  period of physical presence in Australia. You have lived in Australia since MM 20YY with your sister and her family.

•  intention or purpose of presence. You intend to reside in Australia permanently. You have renewed your visas. You will apply for a different visa as soon as you meet the eligibility requirements •  behaviour while in Australia. You have lived with a relative and their family since you first arrived in Australia. You have had short overseas holidays returning to Australia each time to live with them. While overseas, you stayed with relatives and friends in their homes. •  family and business/employment ties. You do not have a spouse. You do not have any dependents. You have family overseas who live independently. You are retired and no longer employed. •  maintenance and location of assets. You do not own any property in the foreign country or in any other country. You maintain two savings accounts in the foreign country. You do not have any investments, property or own any other assets outside of Australia. You have a savings account with a bank in Australia. You have no other assets including properties or investments.

•  social and living arrangements. You regularly attend gatherings with family and friends. You participated in religious activities. You have reconnected with former associates and friends who have also migrated from the foreign country, forming your own social network here. You do not maintain any professional, social, or sporting connections elsewhere, other than in Australia 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 the foreign country and your domicile of origin is the foreign country. You do not intend to become an Australian citizen. Therefore, your domicile is the foreign country. You are not a resident of Australia under this 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 been in Australia for 183 days or more in the income years ended 30 June 20YY, 20YY and 20YY. 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 lived with your relative and their family since you first arrived in Australia in MM 20YY. •  You abandoned your rented accommodation in the foreign country when you moved to Australia. You do not own any property in the foreign country or in any other country.

•  You have made several short visits overseas (vacations) since coming the Australia staying with relatives and friends in their homes then returning to Australia each time to resume living with your relative. •  You have applied for and received extensions to your visas to allow you to remain 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 lived with your relative and their family since you first arrived in Australia in MM 20YY. •  You abandoned your rented accommodation in the foreign country when you moved to Australia. You do not own any property in the foreign country or in any other country. •  You stay with relatives and friends when you holiday overseas.

•  You have applied for and received extensions to your visas to allow you to remain in Australia. 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 You satisfy the resides and 183-day tests of residency and so are a resident of Australia for income tax purposes for the years ended 30 June 20YY, 20YY and 20YY.