Residency

1 Are you a resident of Australia for taxation purposes?

1 Yes. Question 2 Are you solely a resident of Country Z under the Double Tax Agreement (DTA) between Australia and Country Z? Answer 2 No. This ruling applies for the following periods: Year ended 30 June 20YY Year ending 30 June 20YY The scheme commenced on: 1 July 20YY

You were born in Country Z . You are a citizen of Country Z . You are a permanent resident of Australia. You are a tax resident of Country Z . You have previously lived and studied in Australia. Over the past years you have visited Australia for short periods of time. You came to Australia to live for the foreseeable future. You have returned to your house in Australia which you own. You have retired from work in Country Z with your family's company. Your spouse will remain in Country Z for the next couple of years or so until they retire and they will then join you to live in Australia. Your spouse will remain living in a property in Country Z that you rent. The lease agreement for the Country Z property is in your name, and you pay the rent on the property. Your spouse is still working in Country Z and remains in your family home in Country Z . Your spouse will visit you in Australia up until they retire spending half their time in Australia with you. Your spouse has made a number of visits to Australia: You have your house in Australia. You have established a day-to-day routine in Australia which consists of socialising gardening and other domestic duties.

Your intention in moving back to Australia was to retirement. You have an established daily routine. Core to your needs is also looking after your health, and you have established a primary panel of health care providers. You have shares in both private and public companies in Country Z along with several rental properties. Your spouse and your child remain living in your leased home in Country Z . You have a child living in Australia along with a sibling in Australia. When you return to Country Z you will stay in the home with your spouse and child. You made a number of overseas trips. Neither you nor your spouse are eligible to contribute to the PSS or the CSS superfunds.

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

For tax purposes, you are a resident of Australia if you meet at least one of the following tests. You are not a resident of Australia if you do not meet any of the tests. •                 The resides test (otherwise known as the ordinary concepts test) •                 The domicile test •                 The 183 day test •                 The Commonwealth superannuation fund test We have considered your circumstances, and conclude that you are a resident of Australia for taxation purposes as follows: •                 You are a resident of Australia according to the resides test. •                 You meet the domicile test. •                 You do not meet the 183-day test for the initial income year as you were not in Australia for more than 183 days. •                 You will meet the 183-day test for the current income year as you will be in Australia for more than 183 days. •                 You do not meet the requirements of the Commonwealth Superannuation test. You are a resident of Australia for taxation purposes. For more information about residency, see Taxation Ruling TR 2023/1 Income tax: residency tests for individuals . You are a resident of both Australia and

Country Z under domestic law. 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 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 (the Agreements Act) incorporate that Act with the ITAA 1936 and the ITAA 1997 and provide that the provisions of a double tax agreement have the force of law. Taxation Ruling TR 2001/13 discusses the Commissioner's views about interpreting double tax agreements. Paragraph 104 provides that the OECD Model Tax Convention and Commentary will often need to be considered in interpreting double tax agreements.

Where a person is a resident of both Australia and another country under the domestic tax law of each country it will be necessary to determine residency for the purposes of the relevant double tax agreement. 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 agreement. The tiebreaker rules do not change a taxpayer's residency status for domestic law purposes. However, to consider the tiebreaker rules, a person must be a 'resident' of each contracting state as specified in the relevant double tax agreement. Broadly, a person is a 'resident of a contracting state' if they are fully liable to tax in that country. This term, however, does not include any person who is liable to tax in that State in respect only of income from sources in that State or capital situated therein. The DTA between Australia and Country Z 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.

The tiebreaker rules do not change a taxpayer's residency status for domestic law purposes. Application to your situation You are a tax resident of Country Z and are also a resident of Australia for taxation purposes. Therefore, it is necessary to consider the application of the provisions contained in subparagraphs 2 of the DTA as follows: Permanent home Permanent home is not defined in the DTA. Therefore, recourse is to 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':

a)               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 b)               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. Application to your situation You have a permanent home available to you in both Australia and Country Z . Therefore, it is necessary to move onto the habitual abode test. Habitual abode

The OECD commentary provides that determining a taxpayer's habitual abode requires a determination of whether the individual lived habitually, in the sense of being customarily or usually present, in one of the two states but not in the other during a given period. The test will not be satisfied simply by determining in which of the two Contracting States the individual has spent more days during the period (Davies, White and Steward JJ in Pike v Commissioner of Taxation [2020] FCAFC 158 at [29]). The notion of habitual abode refers to the frequency, duration and regularity of stays that are part of the settled routine of an individual's life and are therefore more than transient. It is possible for an individual to have a habitual abode in two states where the individual was customarily or usually present in each State during the relevant period. You have a habitual abode in Australia. This home in Australia is the home you live in for your day-to-day life.

You have settled into a routine which is consistent with having a habitual abode in Australia as you have a panel of medical experts that you visit for your medical needs along with a routine of day-to-day social habits with your friends in Australia. Although you return to Country Z to visit your spouse and child you are customarily or usually present in Australia. Your home in Australia is where you usually eat and sleep and conduct your day-to-day life activities. The commissioner is satisfied that your habitual abode is only in Australia. Therefore, we do not need to consider the personal and economic ties. Conclusion We have concluded that the tiebreaker tests in the DTA between Australia and Country Z apply so that you are deemed to be a resident only of Australia. The provisions of that DTA will therefore apply on the basis that you are a resident of Australia for tax purposes and not of Country Z .