Residency

Are you a resident of Australia for tax purpose as defined by section 6(1) of the Income Tax Assessment Act 1936 (ITAA 1997)?

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

Citizenship and residency You are a citizen of country A and have been a resident of country A for tax purposes. You hold a permanent resident visa of Australia. Family and living arrangements Your spouse resides and works in country A. Your primary residence is in city A, country A. The address of your primary residence is in city A. You reside there with your spouse. You also reside periodically in city B, country A. You have two properties in country A. One of the properties is occupied by your father, and the other you use during your visits. You do so to care for your father. You also own a property in city B and use it as a temporary accommodation. You do not rent your property in Australia. You child is an adult. Your child resides in Australia. She moved to city B for education in 20YY. Your child at present is undertaking a two-year full-time course in Australia. Social and economic ties Your main source of income is through investments. You have no other source of income overseas. You do not have any employment income in Australia or overseas. You have investment income in Australia. The investment income is managed by a financial company.

You do not have any links to any clubs or social group in Australia or in country A. You do not own a motor vehicle in Australia. You have lodged income tax returns in country A Investments Australian investments XXX online saver As of DD MM YY, your multiple online saver accounts have as a combined total of $ XXXXX. XX financial group As of DD MM YY, your Secured Loan Priority Fund - Class A, had a combined net cash distribution of $XXXXX. As of DD MM YY, your SIV Property Fund, had a combined net cash distribution of $XXXXX. As of DD MM YY, your MA Wholesale Priority Income Fund, had a combined net cash distribution of $XXXXX. Other investments You hold multiple private funds investing in country A share secondary market, and multiple private equity funds invested in the primary market. You hold a trust plan in country A. You have bank deposits totalling approximately of XXXX. You hold one annuity insurance policy valued at more than XXXX. Country A bank You had flexible wealth-management income and interest from demand deposits: DD MM YY- DD MM YY you had an income of XXXX. DD MM YY- DD MM YY you had an income of XXXX. DD MM YY- DD MM YY you had an income of XXXX.

DD MM YY- DD MM YY you had an income of XXXX. Country A bank You had flexible wealth management income and interest from demand deposits: 20YY- 20YY you don't have the data available. DD MM YY- DD MM YY you had an income of XXXX. DD MM YY- DD MM YY you had an income of XXXX. DD MM YY- DD MM YY you had an income of XXXX. Other bank interests XXXX wealth-management fund distributions DD MM YY- DD MM YY you had an income of XXXX. DD MM YY- DD MM YY you had an income of XXXX. Private Investment fund On DD MM YY, you redeemed XXXX units, income from this redemption was XXXXX. Travel and life in Australia In MM YY you came to Australia under the Investor Visa Programme. Since 20YY your only reasons to visit Australia has been to visit your child and maintain your property. In the year 20YY-20YY, you resided in Australia for XXX days. In the year 20YY-20YY, you resided in Australia for XXX days. In the year 20YY-20YY, you resided in Australia for XXX days. When travelling to Australia you usually reside at your property in Australia. At your property here in Australia, you tend to garden, cleaning the swimming pool and spa.

Your child rents her own accommodation and occasionally stays at the property when you are visiting. Financial support to your child Annual distribution from your investment funds in Australia are sufficient to cover your childs living and education expense. You continue to provide financial assistance to your child. You child lives independently along with her boyfriend in Australia.

Income Tax Assessment Act 1936 (ITAA 1936) subsection 6(1) Income Tax Assessment Act 1997 (ITAA 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 period 01 July 20XX June 20XX based on the following: Period of physical presence in Australia •                     You have primarily resided in country A between DD MM YY- DD MM YY. •                     You own multiple properties in country A and a property in Australia. •                     You and your spouse have primarily resided between city A, country A and city C, country A. •                     You have not established any professional or social connections in Australia.

•                     You are considered a non-resident for tax purpose under the resides test because: •                     You maintain strong family ties with you spouse and parents in country A. •                     In the years past you have not shown any intention of living in Australia other than your visit to spend time with you child and maintaining your property in Australia. In your case, you are still a citizen of country A and have visited Australia since MM 20YY after receiving your permanent residency under the Investor Visa Programme. Behaviour while in Australia Your behaviour while in Australia has been consistent with temporary visit. You have a property in Australia, although, you do not rent it. You only reside in it, when visiting Australia. You have until now made temporary visits to Australia, to visit your child and to maintain the property in Australia. Aditionally, you have not shown any intention of treating Australia as your permanent home. However, once you retire, you will consider about moving to Australia to be closer to your child. Maintenance and location of asset.

•                     You own a property and investment bank accounts in Australia. •                     You also visit Australia to maintain and refurbish your property and its surroundings. •                     The bank accounts in Australia are primarily to facilitate expenses of your child and maintain your property in Australia. Social and living arrangement Other than your child you do not have any immediate social connection to Australia. The length and the frequency of stays during the period under the 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 country A, and your domicile of origin is in country A. It is considered that you have not fully abandoned your domicile of origin in country A and acquired a domicile of choice in Australia. While you obtained your permanent residency in Australia in MM YY, you did not reside on a permanent basis in Australia. Although, you have shown an intention to reside in Australia after your retirement. You have not shown the intention to reside in Australia, for the period of the ruling.

You and your spouse reside in country A, majority of the year. Although, you travel between city A and city B You travel only to Australia to visit your child and to maintain and refurbish your property in Australia. Your domicile of origin remains in country A as you have still maintained a social connection and employment to country A, and you continue to hold your country A citizenship, whilst maintaining your Australian permanent residency. You have not fully abandoned your domicile of choice in country A. Therefore, your domicile is country A, and you are not a resident of Australia under the domicile test. 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 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: 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. Conversely, your property in Australia will not be considered as your permanent place of abode for the years in question. The Commissioner is satisfied that your permanent place of abode is outside Australia because: •                     Your primary residence is in city A, country A. •                     You reside there with your spouse. •                     You travel to city C, country A to visit your parents. •                     You have visited Australia only for temporary visits to see and meet your child.

•                     You also visit Australia to maintain and refurbish your property. •                     You do not rent the property in Australia. •                     For the years in question, you have resided in country A. •                     Your main source of income is through investments. •                     The investments incomes you receive is mainly from Investments overseas. •                     You are a permanent resident of Australia. The duration and continuity of your presence in country A supports the argument that you have had long- term place of abode in country A. Whilst you are a permanent resident of Australia, you are also a citizen of country A. Therefore, it does not outweigh the enduring association you have maintained with country A.

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 attributes of a place of residence or a place to live. Your place of abode during 20YY-20YY, 20YY-20YY, 20YY-20YY (years of ruling) years was in country A. Hence your principal place of residence is in country A. Therefore, while you are a permanent resident of Australia, the Commissioner considers you have established a permanent place of abode outside Australia for tax purpose for the years of the ruling. 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 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.