Residency

Are you a resident of Australia for taxation purposes?

Yes. This ruling applies for the following periods : Year ending 30 June 20XX Year ending 30 June 20XX Year ending 30 June 20XX The scheme commences on: 1 July 20XX

You were born in Country Z. You are a citizen of Country Y. You have been living in your main residence, as well as working in Australia. You intend to temporarily relocate back to Country Z. The reason for the relocation is for serious family health reasons. You will assist your sibling with the care of their children along with providing support for your relatives. Due to the limitations in the local rental market, you have purchased a home in Country Z to use for the period you are in Country Z, which you will either rent out or sell when you return to Australia. You have a home in Australia which you will rent out over the next couple of years. You may further down the track sell your Australian home depending on what happens while you are in Country Z. You are currently employed full time. You are going to continue to work in this role remotely in Country Z. You will return to Australia a few times per year for employment related activities. It is your intention to continue this role and ultimately return to Australia after a couple of years. Your employer will continue to pay you in Australian Dollars. You do not have a spouse or any dependants.

You are not eligible to contribute to the PSS or the CSS Commonwealth super funds.

Income Tax Assessment Act 1936 subsection 6(1) 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... [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 will be a resident of Australia for taxation purposes from when you leave Australia and return to Country Z until your proposed return to Australia. You will temporarily return to Country Z for family support with your parent and brother in-law. You will aid care for your sibling's children. Due to the limitations in the local rental market, you have purchased a house in Country Z to live in while you are in Country Z. It is your intention to return to Australia. You will make a few trips each year for work purposes.

You will rent your main residence in Australia out and may sell it further down the track. 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 You were born in Country Z.

You became a citizen of Australia and as such your domicile of choice 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 considering 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 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 20XX income year to DD MM 20YY The Commissioner is not satisfied your permanent place of abode is outside Australia up to DD MM 20XX for the 20XX income year. This because you have an established home and are living in City A in a permanent way. You therefore remain a resident of Australia for tax purposes until DD MM 20XX. 20XX income year from DD MM 20XX The Commissioner is satisfied that your permanent place of abode is outside Australia from DD MM 20XX to 30 June 20XX because your Australian home will not be available as it will be rented to tenants.

Therefore, you are not a resident of Australia under the domicile test for this period. 20XX income year and period to DD MM 20XX The Commissioner is satisfied that your permanent place of abode is outside Australia for the 20XX income year, and the period 1 July 20XX to DD MM 20XX because: •                     you will be living in a home you purchased while living temporarily in Country Z •                     you abandoned your home in Australia, and it will be rented by tenants. Therefore, you are not a resident of Australia under the domicile test for the whole 20XX income year, and the period 1 July 20XX to DD MM 20XX. 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. You will not be in Australia for 183 days or more in the relevant income year and are therefore not a resident under this test for this year. Application to your situation

After you depart Australia, and the assumption you will be in Australia for a number of weeks for employment related activities in the previous income year, you will be in Australia for 183 days or more. Therefore, you will be a resident under the 183-day 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. You will not be in Australia for 183 days or more in the 20XX income year. 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 satisfied that your usual place of abode will be outside Australia from DD MM 20XX for the relevant income year based in the following: •                     your usual place of abode will be outside Australia, in your home purchased in Country Z where your day to day life will be. 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 After you depart Australia in the relevant income year, also for the whole of the following income year, and the period 1 July 20XX to DD MM 20XX Commissioner is satisfied you will not take up residence in Australia as you will be supporting your family while living and working remotely in Country Z. You are not a resident under the 183-day test for the 20XX income year from DD MM 20XX, as well as the 20XX income year. 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 test of residency and so are a resident of Australia for income tax purposes for the relevant years