Residency

Are you a resident of Australia for tax purposes for YYYY financial year?

No. This ruling applies for the following period : Year ending MM YY The scheme commenced on: MM YY

You were born in Australia. You permanently relocated to country A on MM YYYY under working holiday visa with a validity of few years. You informed the Australian Electoral Commission that you were departing Australia in late YYYY. You cancelled your private health insurance prior to return to country A. After your working holiday visa expired in YYYY, you continued residing in country A under a Business Visa. In YYYY, you obtained permanent residence through employment. On MM YYYY, you were issued permanent visa to remain in country A indefinitely. You must not be away from country A for more than 2 years to keep this visa valid. You are a tax residence of country A. In Australia, you own couple of investment properties. They have been managed by a property manager agent. You will stay with family and relatives while you stay in Australia. You and your spouse do not retain any personal possessions in Australia. You remain your bank account in Australia and the bank has been informed that you are a non-resident. You hold some shares in a company and the share registry has been informed that you are a non-resident.

You own a vehicle for your holiday in Australia and it is stored at your son's property. You are a member of a sport association. In country A, you have your primary residence with all your personal belongings. You also hold a portfolio of country A-based investment. All mail is sent to this address. You are a Country A pension fund's member. You own a motor vehicle in country A and you have country A driver's license. You serve as managing director through your own business. You have been considered as a tax resident of country A and completed the appropriated country A tax returns. You are a member of a football club since YYYY. You founded some football club and served as president for X years. You live with your spouse in country A and you have children who are living in Australia. During YYYY financial year: •                From MM YYYY to MM YYYY, you are planning to travel to Australia for a Christmas Holiday. It is a brief holiday, primarily to visit family and attend sport events. •                From MM YYYY, you plan to travel abroad for approximately few months. Neither you nor your spouse are a Commonwealth of Australia Government employee for superannuation purpose.

Income Tax Assessment Act 1936 Subsection 6(1) Income Tax Assessment Act 1997 subsection 995-1(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... 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 YYYY financial yearbased on the following: •                You have been relocated to country A since YYYY. •                During the ruling period, you will physically present in Australia for less than 180 days. •                Your purpose to travel to Australia for this year is for short holiday, visit family and sport events. •                During the time in Australia, you will stay with your family members or relatives. •                You do not have any personal possession in Australia.

•                Your primary residence is in country A. •                You are working as Managing Director of your own business in country A. Although the law only requires you to be considered a resident under one test, for completeness the other tests are also considered. 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. You immigrated to country A on MM YYYY and stayed in country A for substantial period however you intend to return to Australia permanently after MM YYYY. It is considered that you do not abandon your domicile of origin in Australia and acquire a domicile of choice in country A. You obtained permanent residency in country A but you intend to return to Australia indefinitely. Therefore, your domicile 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 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 The Commissioner is satisfied that your permanent place of abode is outside Australia because: •                You have lived in country A for a substantial period. •                You have established a home in country A. You stay with family members or relatives while you travel to Australia. •                You do not have any personal possession or personal belonging in Australia. •                Before departing Australia, you inform the Australian electoral that you were departing Australia in late YYYY. Therefore, 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 have not been present in Australia for 183 days or more during the YYYY income year. 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 year ended 30 June YYYY.