Australian resident for taxation purposes

1: Were you a resident of Australia for taxation purposes during all the income years included in the ruling period?

1: Yes. Question 2: Were you a resident of Australia for the purposes of the Country X Double Tax Agreement under the tiebreaker test during the ruling period? Answer 2: Yes. This ruling applies for the following periods : Year ended 30 June 20XX Year ended 30 June 20XX Year ended 30 June 20XX Year ended 30 June 20XX The scheme commenced on: 1 July 20XX

Background You were born in Australia and are a citizen of Australia. You hold an Australian passport. You are not a citizen of Country X, and you do not hold a passport issued by that country. You have travelled between Country X and Australia for a significant number of years to assist in managing business operations in Country X. You are in Country X for work purposes but continually return to Australia. You do not have any intention to live in Country X on a permanent basis and plan to return to Australia to live on a permanent basis when your business commitments in Country X have been completed. You and Person A had returned to Australia when the COVID-19 pandemic started despite your work commitments in Country X, staying at the Property while you were in Australia. Your movements during the ruling period You spent the following periods in Australia, Country X and other overseas countries during the ruling period: Table 1: You spent the following Periods in Australia, Country X and other overseas countries during the ruling period. Income year Details Income year 1 Australia

- Here for a total of more than 183 days, over a couple of periods for business purposes and to complete the activities in relation to your senior role (the Role) with a global group of companies (the Group) at the Property due to COVID-19. Spent time with family, staying at the Property during the periods in Australia. Country X - Spent less than a total of 183 days during a period to complete activities in relation the Role with the Group. You stayed at a rental property (Property X) during the periods in Country X. Other overseas country - The remaining days in the income year were spent in an overseas country for a short period to attend business meeting purposes and to complete activities in relation the Role with the Group. You stayed at a hotel during that period. Income year Details Income year 2 Australia - Here for a total of less than 183 days, over several periods for client and business meetings, and time with family. You stayed at the Property during the periods in Australia. Country X

- More than a total of 183 days over several periods for business purposes and to complete activities in relation the Role with the Group. You stayed at Property X for a short period before moving into a property that you and your spouse (Person A) purchased (Property Z). Other overseas countries - The remaining days in the income year were spent in several overseas countries for short periods for business and/or client meetings, and holiday purposes. You stayed at hotels and a private residence during those periods. Income year 3 Australia - Here for a total of less than 183 days over several periods for business and/or client meetings and time spent with family. You stayed at the Property during the periods in Australia. Country X - More than a total of 183 days over several period to complete the activities in relation the Role with the Group. You stayed at Property Z. During the income year Person A was diagnosed with a medical condition, and you stayed in Country X so they could receive medical treatment. You stayed at Property Z during the periods in Country X. Other overseas countries

- The remaining days in the income were spent in several countries for short periods for client and/or business meetings. You stayed at hotels during those periods. Income year 4 Australia - Here for a total of more than 183 days over several periods for business and personal purposes, with time spent with the family. Person A had medical treatment while in Australia. You stayed at the Property. Country X - Less than a total of 183 days over several periods to complete the activities in relation the Role with the Group and client and/or business meetings. Person A received ongoing medical treatment. You stayed at Property Z. Other overseas countries - The remaining days in the income year were spent in several countries for short periods for client and/or business meetings, staying at hotels during those periods. Several trips for holidays were undertaken when you stayed at private residences. Australian connections and assets Companies You hold the Role with the Group, which is a worldwide group of companies. The parent company of the Group is Company A, which in incorporated in Country X (as discussed below).

The Group includes an Australian company, being Company ABC, in which you hold senior positions. During the ruling period you were frequently in Australia to attend the firm's offices in several locations in Australia to perform your responsibilities in those roles. You did not receive any payment from Company ABC in relation to performing your roles. You have longstanding and broad business relationships and connections with your Australian clients and business partners. The investment trust The investment trust (Trust A) was created for the benefit of you and your family, with you being a beneficiary. The trustee of Trust A is a corporate trustee of which you are not a director or shareholder. Trust A: •                 holds an ownership interest in the Group •                 holds an ownership interest in Company A, a Country X company; and •                 has an indirect ownership interest in a Country X company, being Company B, due to Company A being the sole owner of Company B. Trust A has an ownership interest in property which is used by you occasionally as a holiday home. The family trust

A family trust was created, being the Family Trust, which acquired a property (the Property). The Property is treated as your home, that is used by you and your family and is left vacant when not being used by the family. Most of your family events and gatherings occur at the Property. The services of a gardener and cleaner have been engaged to provide ongoing maintenance of the Property while you are overseas. Connections, assets and income You retained the following in Australia during the ruling period: •                 the services lawyers and accountants •                 life insurance policies; and •                 a private health insurance policy. You and Person A have Australian wills and Powers of Attorney. You held the following assets in Australia during the ruling period Table 2: Assets held in Australia during the ruling period. Income year Description Income year 1 •                 Several bank accounts and credit cards •                 Shares in several companies, jointly held with Person A •                 Units held in an investment account •                 Sole ownership of several rental properties

•                 An ownership interest in the rental property (Property D) •                 Accounts with regulated superannuation funds •                 Investments with self-managed superannuation fund •                 Household effects at the Property; and •                 Personal items, such as an art collection, family heirlooms, book collection, memorabilia collections, music collection, photographs, family papers, wine collection, income and tax records and personal clothing. Income year 2 •                 Same as previous income year, with the exception that Property D was sold during the income year. Income year 3 •                 Same as previous income year. Income year 4 •                 Same as in previous income year, with the addition of a motor vehicle. During the ruling period you received the following: Table 3: Australian income received during the ruling period. Income year Description Income year 1 •                 Interest income, dividend income, rental income, and capital gains; and •                 Trust distributions consisting of non-primary production income, franked distributions, franking credits and capital gains. Income year 2

•                 Interest income, dividend income, rental income, and capital gains; and •                 Trust distributions consisting of non-primary production income, franked distributions, franking credits and foreign income. Income year 3 •                 Interest income, dividend income and rental income; and •                 Trust distributions consisting of non-primary production income, franked distributions, franking credits, foreign income and other income. Income year 4 •                 Interest income, dividend income and rental income; and •                 Trust distributions consisting of non-primary production income, franked distributions, franking credits, foreign income and other income. You were a member of several clubs and/or societies. Person A is in Australia during the periods you are in Australia. They own several rental properties in Australia. You have children and several grandchildren who live in Australia. You and your family celebrate Christmas and Easter gatherings at the Property. You refer to the Property as 'home' in your communications and have always planned to live there permanently when you have retired.

The Property is available to you and your family and is left vacant when you and Person A are overseas. You were not enrolled on the Australian Electoral Roll during the ruling period. During the ruling period you did not advise any Australian companies with whom you held shares that you were a foreign resident. Nor had you advised any Australian banks that you were a non-resident. You are not a Commonwealth Government of Australia employees for superannuation purposes and are not eligible to contribute to the Public Sector Superannuation Scheme (PSS) or the Commonwealth Superannuation Scheme (CSS). Nor are you a spouse of such a person, or a child under 16 of such a person. Country X connections and assets During the income years in the ruling period you had a visa which enabled you to stay and work in the Country X for an indefinite period without having to extend your visa. Person A accompanies you for most of the time you are in the Country X, travelling there as your dependant with their visa being linked to you, allowing them to stay in Country X for an indefinite period. Companies

The parent company of the Group is Company A, that was incorporated in Country X. You hold senior roles with Company A. The Group includes the following Country X subsidiaries: •                 Company B, with whom you hold senior positions. •                 Company C, with whom you hold a senior position. You are employed by Company A and Company C in your senior role (the Role). You receive a salary from Company A to compensate you for holding the position, the Role, in addition to your senior positions with the subsidiaries as Company ABC does not run a payroll function, and your salary is delivered via its subsidiaries, being Company B and the Company C. Company X connections, assets and income During the ruling period you received the following: Table 4: Country X income received during the ruling period. Country X tax year Description Year 1 Employment income (salary) from Company B and Company C, and capital gains arising in relation to the disposal of shares Year 2 Employment income (salary). Year 3 Employment income (salary) and interest income Year 4 Employment income (salary), interest income and dividend income.

You lodged tax returns in the Country X tax years for Year 1 to Year 4 in which it was reported that you were for all or part of the year one or more of the following: •                 Non-resident •                 Not domiciled in the Country X, claiming the remittance basis; and •                 Dual resident in Country X and another country. No foreign income was disclosed in the Country X Year 1, Year 2 or Year 3 tax returns. You receive an accommodation/housing allowance from Company B, which is paid to you on behalf of Company C, to be used in relation to property rental, purchasing a property and/or hotels. You used the housing allowance in relation to the rental of an unfurnished property (Property X). You and Person A decided to purchase a property as an investment due to the upturn in rental costs and the downturn in the Country X property market as a strategic investment with the view to selling it should the market conditions improve.

You and Person A jointly purchased Property Z with the potential that it may be sold if the market conditions improve. You lived at Property X for a short period in Income Year 2 before moving into Property Z. The housing allowance is used to pay off the mortgage on Property Z. Property Z is used while you are working in Country X. It is anticipated that the property will be sold once you and Person A retire to Australia, or when you are no longer required by your employer to be in Country X for long periods. You have lawyers and accountants in Country X. You do not have any family members in Country X with the exception of Person A when they accompany you to Country X. Person A travels to Australia to visit family members occasionally while you continue to work in Country X. You have the following assets in the Country X: •                 Several joint accounts with Person A and a credit card •                 A motor vehicle jointly owned by you and Person A; and •                 Household effects, including furnishing, with the majority of items being borrowed from friends, or low-cost, second-hand items. You also have two artworks with a significant combined value.

You are a member of several clubs in Country X. You intend returning to Australia on a permanent basis when your work commitments in Country X are completed.

I n c ome Tax Assessment Act 1936 subsection 6(1) I n c ome Tax Assessment Act 1997 section 995-1 International Tax Agreements Act 1953

Question 1: Were you a resident of Australia for taxation purposes during the ruling period? 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 ... [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 We have considered the facts of your situation in relation to the resides test during the following income years: Income year 1 You are a resident of Australia under the resides test for this income year based on the following:

•                 You were physically in Australia for a total of more than 183 days over several periods when you undertook activities in relation the Role, spending time at the Property and with family. You spent less than 183 days in Country X when you performed activities in relation to the Role. The remaining days in the income year were spent in another country for business purposes. •                 While in Australia, you and Person A lived at the Property which you consider as being your home, where spend your time while in Australia, celebrating holidays and family occasions. Your household effects and personal items are left at the Property, which is only available for you and your family members use. It is always available to you when you are in Australia. •                 You preformed activities in relation to the Role, attending meetings for business purposes, and with clients I several locations in Australia. •                 You had bank accounts, investments, several investment properties and superannuation accounts in Australia. •                 Your Intention is to return to Australia permanently at some point in the future.

•                 Your behaviour while in Australia is consistent with someone residing here, with a demonstrated connection with Australia. Although the law only requires you to be considered a resident under one test for this income year, for completeness the other tests are also considered below. Income year 2 You are a resident of Australia under the resides test for this income year for the following reasons: •                 You were physically in Australia for less than 183 days in total over several periods when you undertook activities in relation to the Role, and spent time with family, staying at the Property. You spent a total of more than 183 days in Country X during several periods, performing activities in relation to the Role. During the remaining days you spent short periods in several other countries for business and holiday purposes during several periods.

•                 While your physical presence this income year was less than in the previous income year, your continuity of association with Australia was maintained. Even though you have a connection with Country X through your employment, business, assets and Person A accompanying you during most of the period you are in Country X, that doesn't make you a mere visitor of Australia during the periods you were in Australia. •                 You had bank accounts, investments, investment properties and superannuation accounts, household effects and personal items in Australia, with the Property being available to whenever you and/or your family members wish to use it. •                 You considered the Property to be your home even though you and Person A had purchased Property Z, which you view as an investment property. •                 You stayed and worked in Country X during a large portion of the income year but had returned to Australia at intervals when you resumed an established life in Australia. •                 Your Intention is to return to Australia permanently in the future.

•                 Your intention is not to leave Australia permanently, and while you were absent from Australia for a substantial period of the income year you had retained an ongoing connection with Australia. Although the law only requires you to be considered a resident under one test for this income year, for completeness the other tests are also considered below. Income year 3 You are a resident of Australia under the resides test for this income year for the following reasons: •                 You were physically in Australia for a total of less than 183 days over several periods, when you undertook activities in relation to the Role, attending client and business meetings, spending time with family, staying at the Property. You spent a total of more than 183 days in Country X during several periods, performing activities in relation to the Role. Person A was diagnosed with cancer, receiving medical treatment during a period in Country X. During the remaining days you spent short periods in several other countries for the purpose of having business and/or client meetings.

•                 You had similar assets to the previous income year, being bank accounts, investments, investment properties and superannuation accounts, household effects and personal items in Australia, with the Property being available to whenever you and/or your family members wish to use it. •                 You had returned to Australia at intervals when you resumed an established life in Australia. •                 Your attitude during this income year remained that the Property was your home. •                 Your intention is not to leave Australia permanently, with the Intention to return to Australia permanently in the future. and while you were absent from Australia for a substantial period of the income year you had retained an ongoing connection with Australia. •                 Despite being absent from Australia during a large portion of the income year, your intention and presence in Australia demonstrated your continued connection with Australia. •                 You have an established durable connection with Australia supporting your continuity of association with Australia.

Although the law only requires you to be considered a resident under one test for this income year, for completeness the other tests are also considered below. Income year 4 You are a resident of Australia under the resides test for this income year for the following reasons: •                 You were physically in Australia for a total of more than 183 days over four periods for business purposes, time with family and for personal reasons, with Person A receiving medical treatment while in Australia, staying at the Property. You spent a total of less than 183 days in Country X over several periods performing activities in relation to the Role, with Person A receiving medical treatment. During the remaining days you spent short periods in several other countries for the purpose of having business and/or client meetings, and holidays. •                 You had similar assets to the previous income year, being bank accounts, investments, investment properties and superannuation accounts, household effects and personal items in Australia, with the Property being available to whenever you and/or your family members wish to use it.

•                 Your attitude during this income year remained that the Property was your home. •                 Your intention is not to leave Australia permanently, with the Intention to return to Australia permanently in the future. •                 You had retained an ongoing connection with Australia, having an established durable connection with Australia supporting your continuity of association with 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 We have considered the following in relation to determining whether you meet the domicile test during the income years in the ruling period: •                 You were born in Australia, and your domicile of origin is Australia. •                 You have not obtained citizenship in Country X, and while your visa enables you to stay in Country X indefinitely it is not sufficient to evidence your intention to acquire a new domicile of choice.

•                 While you are physically in Country X during the income years, your intention is not to make your home indefinitely in Country X, with your intention being to return to Australia on a reasonable contingency, even though you are staying in Country X for a substantial period due to business and employment commitments. •                 You had retained your connections with Australia while you were overseas and hadn't abandoned Australia in a permanent way to live Country X. It is viewed that your domicile had remained Australia during the ruling period and you had not acquired a domicile of choice in Country X. 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 not satisfied that your permanent place of abode is outside Australia because:

•                 You had originally lived in a rental property in Country X. You and Person A moved into Property Z in Income Year 2, being a jointly purchased property that had been purchased for investment purposes. You and Person A stay at Property Z while you are in Country X, with the intention to sell it in the future. •                 You and Person A have formed a durable connection with the Property over the years, with those connections not changing during each income year in the ruling period. You depart Australia with the intention to return after a finite period, resuming living at the Property when in Australia. Your intention to reside at the Property hadn't changed during the income years. •                 You are living in both Australia and Country X; however, a person cannot have a permanent place of abode in both Australia and overseas. While you live at Property Z, you do not have an enduring relationship that is the same as your continuing relationship and the durable nature of your association with the Property. Based on the information provided it cannot be viewed that you had permanently abandoned the Property while you were living in Country X.

Therefore, you are a resident of Australia under the domicile test during the income years covered by the ruling. 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 We have considered the facts of your situation in relation to the 183-day test during the following income years: Income Year 1 You were in Australia for more than 183-days during this 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 as discussed below. Income Year 2 You were in Australia for less than 183-days during this income year. Therefore, as you have not been present in Australia for 183 days or more during this income year you are not a resident under this test for this income year. Income Year 3

You were in Australia for less than 183-days during this income year. Therefore, as you have not been present in Australia for 183 days or more during this income year you are not a resident under this test for this income year. Income Year 4 You were in Australia for more than 183-days during this 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 as discussed below. 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 following income years: Income Year 1

During this income year you and Person A had stayed at the rented property in Country X during the periods you were there. You also used the Property during this income year which is where you would usually live but for being overseas. The Property has been your home for many years, and it is the place you return to when you are in Australia. The nature and use of the Property by you and your family during the current income year and preceding income years had been continuous. Your attitude in relation to the Property during this income year was that it was your home. Income Year 4 During this income year you and Person A had stayed at Property Z, being an investment property that you and Person A had jointly purchased with the purpose of selling in the future. You also used the Property during this income year which is where you would usually live but for being overseas. The Property has been your home for many years, and it is the place you return to when you are in Australia. Your attitude in relation to the Property during this income year was that it was your home.

Based on the facts of your situation, even though you have strong ties to both Australia and Country X during the above income years, it is likely on balance that your usual place of abode for those income years is still 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. This is the second proviso in the 183-day test. To be a resident of Australia under this test, the person must have an intention to be resident in Australia as well as be here for 183-days and not have a usual place of abode elsewhere. Application to your situation The Commissioner is satisfied that you did intend to take up residence in Australia in the income years in the ruling period because: •                 While you were physically in Country X during the income years, your intention was not to make your home indefinitely in Country X. •                 You had not abandoned the Property while you were in Country X.

•                 When you come to Australia you do not come as a visitor, but to resume living your life in Australia. •                 Your intention is to return to Australia after your business commitments have ended. 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 We have considered the facts of your situation in relation to the superannuation test during the income years covered by this ruling. 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 in any of the income years under this test. Conclusion You satisfy a residency test/s in each of the following income years: • Income Year 1 - met the resides test, domicile test and the 183-day test • Income Year 2

- met the resides test and the domicile test • Income Year 3 - met the resides test and the domicile test; and • Income Year 4 - met the resides test, the domicile test and the 183-day test. Therefore, you are a resident of Australia for taxation purposes during the ruling period. Question 2: Were you a resident of Australia for the purposes of the Country X Double Taxation Agreement under the tiebreaker test during the ruling period? Double Taxation Agreement 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 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. [1] Article X of the double taxation agreement between Country X and Australia (the Agreement) 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 double tax agreement. The tiebreaker rules do not change a taxpayer's residency status for domestic law purposes. Article X(x) of the Agreement provides that a person's residency status for the purpose of applying the Agreement shall be determined as follows: The status of an individual who, by reason of the preceding provisions of this Article is a resident of both Contracting States, shall be determined as follows:

(a) that individual shall be deemed to be a resident only of the Contracting State in which a permanent home is available to that individual; but if a permanent home is available in both States, or in neither of them, that individual shall be deemed to be a resident only of the State with which the individual's personal and economic relations are closer (centre of vital interests); (b) if the Contracting State in which the centre of vital interests is situated cannot be determined, the individual shall be deemed to be a resident only of the State of which that individual is a national; (c) if the individual is a national of both Contracting States or of neither of them, the competent authorities of the Contracting States shall endeavour to resolve the question by mutual agreement. These tests are applied sequentially. Thus, where the first test can be used to determine residency for the purpose of the Agreement, it is not necessary to apply any of the other tests. Permanent home

Permanent home is not defined in the Agreement. Therefore, recourse can 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 Australia. However, while you have been in Country X you had originally leased a property and then purchased a property. You always had the possession and use of a property while you were in Country X during the ruling period. It is considered on balance that you have a permanent home available to you in Australia and Country X which are available to you whenever you are in each respective country. As you satisfy the permanent home test in both Australia and Country X, the tie breaker under Article X(x)(c) of the Agreement as provided above must be considered to determine in which country your centre of vital interest lies. Personal and economic ties (centre of vital interests) The OECD commentary states that regard should be had to the taxpayer's family and social relations, their political, cultural or other activities, their place of business, the place from which they administer their property etc. As noted in Pike v Commissioner of Taxation [2020] FCAFC 158 at [39] (the Pike case)

, personal factors do not have greater weight than economic factors. In each case it will be a matter of fact and degree whether a taxpayer's personal and economic relations, viewed as a whole, support ties closer to one contracting state over the other contracting state. Application to your situation Based on the Pike case , the Commissioner has to balance all personal and economic facts together with no greater weight being placed on personal acts as considered below: Personal and economic ties in Australia •                 You were born in Australia and are a citizen of Australia. •                 You have familial ties with your children and grandchildren, and Person A is with you while you are in Australia. •                 You celebrate familial events in Australia. •                 You have assets in Australia, such as several investment properties, investments, superannuation funds, household effects and a motor vehicle purchased in Income Year 4. •                 You have social connections in Australia, being a member of several clubs •                 You have business and client connections.

•                 You are hold senior positions with Company ABC for which you do not receive any payment •                 You are a beneficiary of The Investment Trust. •                 You earn income in Australia from trust distributions, interest income, dividend income, rental income and capital gain during all/some of the income years in the ruling period. Personal and economic ties in Country X •                 You are not a citizen of Country X. •                 Person A accompanies you while you are in Country X, but you do not have any other family members there. •                 You have assets in the Country X, such as a motor vehicle, household effects, and a jointly owned property. You are a member of several clubs and have business and client connections in Country X. •                 You undertake your responsibilities in the Role in Country X. •                 You earn income in Country X from your employment, and capital gains, interest income and dividend income in some of the income years during the ruling period. After balancing the facts of your situation, it is viewed that your personal and economic relations are stronger with Australia.

Therefore, you are a resident of Australia and not Country X for the purposes of the tie breaker test in the Agreement. > [1] See also ATO ID 2003/1195