Residency

Are you a resident of Australia for tax purposes as defined by subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936)?

No. This ruling applies for the following periods: Year ended 30 June 20YY Year ended 30 June 20YY Year ended 30 June 20YY Year ended 30 June 20YY Year ended 30 June 20YY The scheme commenced on: DD MM YY

You were born in Australia. You are a citizen of Australia and country C. You and your ex-wife resided in Australia. In MM 20YY you relocated to country C. You and your family resided in country C, from MM 20YY to MM 20YY. You left country C in 20YY to commence your business venture in the country D. You and your family resided in country D from 20YY-20YY. In June 20YY you moved to country B with your current partner. You terminated the lease of your apartment in country D in MM 20YY. You are not a member of the Public Sector Superannuation Scheme (PSS). You are not an eligible member of the Commonwealth Superannuation scheme (CSS). Ties to Australia You do not hold any Australian private health insurance. You do not hold any membership in Australian clubs, societies or professional association. You have an investment property in Australia. Intention You reside in country B on a family member of an overseas country visa. This allows you to work and live in country B for X Years. You intend to apply for permanent residency in YYYY. Initially you moved into your partner's home. The address of the property was at XXXX, XXXXX, country B.

You then bought a property in city A and moved in together with your partner. At present you reside with your partner at XXXX, XXXX, country B. You jointly own the property with your partner. Family and social connection Your parents reside in Australia. You married ex-wife in 20YY. Your, ex-wife is an Australian citizen. You have two children, aged XX and XX. You and your ex-wife parted way in MM 20YY. Your, ex-wife and the children moved to city A in Australia in around MM 20YY. At present you have a new partner. Your present partner is an XXX citizen residing in country B. You have one child with your current partner aged X months. You reside with your partner in city B. You participate in professional and social organization in city B. Income and employment Your main source of income is the salary you draw from your employment with country D business. You also have a salary paid to you for your employment with an organization A in Australia. Australia You worked at the Organization B until the year ending 20YY. At present you hold a part-time fixed term appointment at organization B. At present you deliver your services remotely from overseas.

You attend a limited number of days in person at Organization B. Country D You were working at organization C for the 20YY/20YY a year, whilst still employed by the Organization D. You co- founded a country D business MM 20YY. You hold shares in the company. Accommodation and asset Your investment property has been rented to third parties. You have not used the property in Australia for personal use. You maintain and Australian account to primarily facilitate payment of ongoing cost associated with the property. You are a member of a superannuation fund. You do not own any motor vehicle in Australia. Overseas arrangement You hold a country C citizenship. You resided in the country D on a legal visa. You resided in long term accommodation in country B, C, D. All leases have been either in your name or your spouse's name. You have bank accounts in country B and D. All bank accounts are for personal expenses. You have relocated all your personal belongings to country C from Australia, when you moved there. Visits to Australia Since departing Australia in MM YY, you have returned to Australia for a short period of each year.

Primarily for holiday, to visit your parents, to visit your kids and to attend to your part-time role. You have also visited Australia to attend various meetings of various nature. During your visits you have stayed exclusively in temporary accommodation. While visiting Australia you primarily stay at Airbnb, hotels and with family members. The meetings are to discuss interest of your client. In the financial year ending DD MM YYYY, you made X trip to Australia. You stayed in Australia for XX days in financial year ending 20YY. In the financial year ending DD MM YYYY, you made X trips to Australia. You stayed in Australia for a total of XXX days. In the financial year ending DD MM YYYY, you made X trips to Australia. You stayed in Australia for a total for XXX days. In the financial year ending XX MM YYYY, you made X trips to Australia. You stayed in Australia for a total for XX days. In the financial year ending DD MM YYYY, you made X trip to Australia. You stayed in Australia for XX days.

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

Question Are you a resident of Australia for tax purposes as defined by subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936)? Summary No. Having considered your circumstances as a whole and the residency tests, the Commissioner is satisfied that you are not a resident of Australia for income tax purposes from DD MM YYYY to DD MM YYYY. 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 not a resident of Australia under the resides test for the period DD MM YYYY to DD MM YYYY based on the following: Period of physical presence in Australia •                     You have primarily resided in city A country B from DD MM YYYY to DD MM YYYY. •                     You and your partner own a property together in city B, country B where you stay together with you child. •                     You have established professional and social connections to country B with your friends and various social organization. •                     You are considered a non-resident for tax purposes under the resides test because: •                     You maintain strong family ties with your wife and child in country B.

•                     You have no intention of returning to Australia to live. •                     You have social living arrangements in city B, country B In your case, you are still a citizen of Australia and moved to country B in MM 20YY on a visa. Behaviour while in Australia Your behaviour while in Australia has been consistent with a temporary visit. You have an investment property in Australia, although you do not have access to reside in it and treat as your own residence. You made temporary visits to Australia in relation to your work and meeting regarding your business venture overseas. You do not have the intention of treating Australia as your permanent home. Business and employment ties •                     Your visits to Australia are primarily have been for the meeting with various organization. •                     You also visit Australia to meet your work commitments. Maintenance and location of asset You maintain bank accounts in Australia and own an investment property. The bank accounts in Australia are primarily used to facilitate the payment of ongoing cost associated with the investment property. You are also member of the superannuation fund.

Social and living arrangements You do not have any immediate social connection to Australia. The length and the frequency of stays during the period under consideration do not support the concept of residing in Australia. Based on the information you have provided; the Commissioner is satisfied that you are not residing in Australia according to the ordinary concepts. This may change if you decide to return to Australia and meet the residency test for tax purpose. You may still be an Australian resident if you meet the conditions of one of the other tests (the domicile test, 183-day test and Commonwealth superannuation fund test). 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 fully abandoned your domicile of origin in Australia and acquired a domicile of choice in country B. While you obtained an overseas citizen visa known as a XX in MM 20YY and your intention is also to apply for a permanent residency in country B in 20YY. As your partner and child reside in city B, country B. You intend to reside there indefinitely.

You were not entitled to reside in country B indefinitely and while living in country B, you currently only hold an EU citizen visa valid for X years until 20YY. It is acknowledged your intention is ultimately to reside in country B permanently with your family, however you have not fully established a domicile of choice in country B at this stage. Your domicile of origin remains Australia as you have still maintained a strong social connection and employment to Australia, and you continue to hold your Australian citizenship. You have not fully abandoned your domicile of choice in 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 Place of abode

The expression "place of abode" refers to a person's residence, where one lives with one's family and sleeps at night (R v. Hammond (1852) 117 E.R. 1477 at p. 1488; Levene v. I.R.C.(1928) A.C.217 and I.R.C. v. Lysaght (1928) A.C.234). In essence, a person's "place of abode" is that person's dwelling place or the physical surroundings in which a person lives. Permanent

The leading case on whether a permanent place of abode is outside Australia is F.C. of T. v. Applegate (79 ATC 4307;(1979) 9 ATR 899). The taxpayer, whose domicile was in Australia, had been sent by his employer, a firm of solicitors, to establish a branch office in Vila, New Hebrides. His absence was to be for an indefinite period in the sense that the period was not specified or defined but it was expected that it would be of a substantial length. It was also expected that later he would be recalled to Australia. In fact, he returned to Australia after 2 years, his stay being cut short by illness. The taxpayer claimed that the salary he earned in Vila was exempt from Australian tax being income derived by a non-resident from sources wholly out of Australia. In that case, it was decided that, because the taxpayer could not be considered to have resided in Australia under the ordinary meaning of the word "reside", the extended definition of "resident" contained in paragraph (a)(i) had to be considered. Both the Supreme Court of New South Wales and, on appeal, the Full Court of the Federal Court of Australia held that the taxpayer had a permanent place of abode outside Australia. He was therefore a non-resident in the year of income concerned.

The Federal Court rejected the Commissioner's argument that a permanent place of abode outside Australia required an intention to live outside Australia indefinitely without any intention of returning to live in Australia in the foreseeable future, other than at some remote, albeit specific, point of time. The Court said that the term "permanent" must be interpreted in the context in which it appears. The Court said that in its context in the "resident" definition a permanent place of abode does not have to be "everlasting" or "forever". It means something less than a permanent place of abode in which a person intends to live for the rest of his or her life. Therefore, your investment property in Australia will not be considered as your permanent place of abode. The Commissioner is satisfied that your permanent place of abode is outside Australia because: •                     You jointly own a property along with your partner in country B, where you reside with your child. •                     You have resided in country B since MM 20YY. •                     At present you mainly deliver your services remotely from country B.

•                     You have visited Australia only for temporary visits to meet your obligation to your employer in Australia and to attend meetings. •                     You have also visited Australia to meet with your family and friends. •                     You intend to live in country B for a considerable and indeterminable period of time with your partner and child. •                     You intend to apply for permanent residency in 20YY. The duration and continuity of your presence in country B supports the argument that you established a long-term place of abode in country B. While you are a citizen of Australia, this does not outweigh the enduring association, and you have and maintain with country B. Whilst the question of a usual place of abode is a question of fact, generally the phrase is interpreted as the abode customarily or commonly when you are physically in a country. Your place of abode does not have to be fixed but must have the attributes of a place of residence or a place to live. Since MM 20YY, your usual place of abode has been country B. Hence, your principal place of residence is country B.

Therefore, while you are a citizen of Australia, the Commissioner considers you have established a permanent place of abode outside Australia for tax purposes in country B since MM 20YY. Therefore, you are not a resident of Australia for the year ended DD MM XXXX to DD MM XXXX under the domicile test based on establishing a permanent place of abode in country B. 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 not been present in Australia for 183 days or more during the 20YY-to-20YY income years. 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 As you do not satisfy any of the four tests of residency, you are not a resident of Australia for income tax purposes for the years ended DD MM 20YY, 20YY, 20YY, 20YY and 20YY.