Residency

Are you an Australian resident for tax purposes for the 20XX tax year?

Yes This ruling applies for the following period : Year ended DD/MM/20YY The scheme commenced on: DD/MM/20YY

You (Person A and Person B) were born in and are citizens of Country B. On DD/MM/20YY, you enrolled Child A in College in Australia. On DD/MM/20YY, you moved to Australia with X of your children. You moved to Australia on an XXX visa, which is a temporary visa. You are unable to apply for citizenship at this point, due to the terms of the visa. Upon arrival you moved in to a relative of Person A's residence with them. You are not paying rent and no formal agreement is in place. You contribute half of the costs of the utilities for the property. You state you will look to rent or purchase your own property in Australia in time. You have your own designated rooms, and they are left as they are whenever you travel back to Country B. You state at time of arrival, you moved for business opportunities and would be engaging in property developments. A requirement of the visa is to invest $XXm in a government bond. Initially, you returned to Country B regularly, and in the 20XX and 20XX tax years spent over 183 days in Country B. On DD/MM/20YY, you enrolled Child B in an Australian school.

During the 20XX tax year you returned to Country B on X occasions for short visits and have spent over 183 days in Australia. You have stated you stay in Australia during school terms and return to Country B with your children in school holidays and to look after business interests you still have there. You have stated that in the future your travel movements will be visiting Country B once or twice a year, depending on family circumstances, otherwise will stay in Australia long term. You own several properties in Country B. You stay in a property you own when you return to Country B, this is not rented out at other times. You own the following assets in Australia, a warehouse, bank accounts, land for development, shares and Government bond. You own the following assets in Country B, investments, property, motor vehicles, household effects and bank accounts. You have stated you will not lodge any overseas tax returns whilst in Australia. You receive rental income from some of the other properties owned in Country B. You advise you do not receive any income from businesses in Country B, any profits are reinvested into the business.

In Australia, you receive interest income from your government bond and savings account, plus rental income from rented commercial property and profits from share trading. You add that rental income is declared to the Country B government. The tax payable on the income is paid to the Country B government each time they receive rent instead of submitting an annual return. You have not developed any professional, social or sporting connections in Australia. You have not maintained any professional, social or sporting connections in Country B. You both hold driver's licenses in Australia and Country B. You have correspondence sent to both your Australian and Country B address.

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

Overview of the law 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 a resident of Australia under the resides test for the period DD/MM/20YY to DD/MM/20YY based on the following: •                     You first arrived in Australia on DD/MM/20YY, and have been residing at a relative of Person A's residence whilst in Australia since this date

•                     You have designated rooms which are left as they are when you visit Country B •                     You state you will look to rent or purchase your own property •                     You enrolled your youngest child at a local school and advise you stay in Australia throughout school terms •                     During the 20XX tax year you only returned to Country B on X occasions for short visits •                     You have stated that in the future your travel movements will be visiting Country B X times a year, depending on family circumstances, otherwise will stay in Australia long term. •                     You state you will look to rent or purchase your own property in Australia •                     You hold an Australian driver's licence •                     You hold bank accounts, and have invested in a Government bond and shares in Australia •                     You own a warehouse that you rent out, and land for development in Australia. 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 In your case, you were born in Country B and your domicile of origin is Country B.

It is considered that you did not abandon your domicile of origin in Country B and acquire a domicile of choice in Australia. You are not entitled to stay indefinitely in Australia on an XXX visa and you have not obtained Australian citizenship or permanent residency to date. Therefore, your domicile is Country B, and 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 been in Australia for 183 days or more in the 20XX income year. Therefore, you will be a resident under this 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. 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 not satisfied that your usual place of abode was outside Australia for the relevant income year based on the following: •                     You are living in Australia with your immediate family •                     You have children enrolled in school and college here •                     You state you will look to rent or purchase your own property in Australia •                     You hold an Australian driver's licence •                     You hold bank accounts, and have invested in a Government bond and shares in Australia •                     You own a warehouse that you rent out, and land for development in Australia. 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 The Commissioner is satisfied that you did intend to take up residence in Australia for the relevant income year because: •                     You are living in Australia with your immediate family

•                     You have children enrolled in school and college here •                     You state you will look to rent or purchase your own property in Australia •                     You hold an Australian driver's licence •                     You hold bank accounts, and have invested in a Government bond and shares in Australia •                     You own a warehouse that you rent out, and land for development in Australia. 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 and 183-day tests of residency and so are a resident of Australia for income tax purposes for the 20XX tax year ended DD/MM/20YY.