Will the Taxpayer be a resident of Australia during the income tax years ending 30 June 20XX, 30 June 20XX, and 30 June 20XX under subsection 6(1) of the Income Tax Assessment Act 1936 ?
No. This ruling applies for the following periods : 1 July 20XX to 30 June 20XX 1 July 20XX to 30 June 20XX 1 July 20XX to 30 June 20XX
Personal background and family 1. The Taxpayer was born in Country A. However, they were raised in Country B and acquired their father's nationality at birth, thus, holds citizenship of Country B. The Taxpayer later acquired Australian citizenship on XX June 20XX. 2. The Taxpayer is married to Person A, who holds dual citizenship of Country B and Australia; and became an Australian citizen on XX October 19XX. 3. Together, the Taxpayer and their spouse have three children. 4. The Taxpayer and their family resided in Australia from January 20XX to March 20XX. They relocated from Australia to Country B in March 20XX, which was intended to be an indefinite relocation back to Country B. 5. The Taxpayer departed Australia on XX March 20XX for a short holiday before entering Country B on XX April 20XX, where they have since resided. As the Taxpayer holds citizenship of Country B, they do not require a visa to enter (or exit) Country B. 6. Due to a change in personal circumstances, the Taxpayer's spouse and the children are contemplating a return to Australia in mid-20XX. Specifically, the following:
(a) the Taxpayer's spouse and the children have felt challenged by the quality of life and health concerns of living in Country B, compared to Australia; (b) the Taxpayer's spouse is the full-time carer for one of the children; (c) the eldest child, misses their friends greatly and wishes to pursue career opportunities in Australia having gained some good work experience in Country B; (d) the youngest child may return to Australia to start university in 20XX; however, the youngest child may choose to remain in Country B.
7. The Taxpayer has no plans to return to Australia and intends to continue residing in Country B for the foreseeable future, where his strong business, professional, economic and social ties remain. They have re-adjusted well to the relocation back to Country B and is enjoying life in Country B, as this is well suited to their personal and business interests. As the Taxpayer's children are now of adult age, where the children reside does not dictate their own place of residence or daily life. Thus, this allows them to remain residing in Country B for the foreseeable future, which they anticipates to be at least the next 5-6 years. Personal, social and economic ties with Country B 8. The Taxpayer entered Country B on XX April 20XX, after taking a short holiday after departing Australia indefinitely on XX March 20XX. The Taxpayer been treated as a Country B tax resident from X April 20XX, and thus, ceased Australian tax residency on X April 20XX.
9. The Taxpayer personally rents a townhouse under a two-year lease, which is currently due to expire on XX July 20XX. Whilst the Taxpayer and their family rented shorter term accommodation on arrival in Country B for a few months whilst searching for appropriate long term accommodation, the townhouse has since been the home for the Taxpayer, their spouse, and the children. The Taxpayer intends to maintain long term rental accommodation in Country B, whether through a renewal at this townhouse, or another apartment / townhouse nearby once this lease expires. 10. The Taxpayer's personal belongings (e.g. clothing, personal effects, photos, sporting equipment and books) are located in his Country B home and will remain with them in Country B, even if their spouse and children decide to move to Australia in mid-20XX. All household and personal effects they held in Australia prior to their relocation to Country B were shipped, with nothing left in storage in Australia, as it was not intended for the Taxpayer nor their family to return to Australia as a place of residence.
11. The Taxpayer is employed in Country B as an executive full-time partner of a private firm and serves on the firm's executive board and internal subcommittees with responsibility for the group's investment activities. Prior to their relocation to Australia in 20XX, the Taxpayer was also employed by the same employer and continued to hold a senior role whilst they were living in Australia. One of the main reasons for the decision to relocate to Country B in 20XX was the opportunity presented by the employer to the Taxpayer. 12. Separate to their equity interest and investments in the employer and associated structures, the Taxpayer holds various other investments in Country B. 13. The Taxpayer holds a Country B driver's licence, owns a car in Country B, and maintains professional and social connections in Country B. This includes membership of sporting clubs and private members clubs in Country B. 14. The Taxpayer has lodged Country B tax returns reflecting his Country B tax residency from X April 20XX.
15. Their household and personal effects are located at his Country B residence. These will remain in Country B if the Taxpayer chooses to visit Australia for any reason. Personal, social and economic ties with Australia 16. The Taxpayer has had limited personal, social and economic ties in Australia since March 20XX. 17. Prior to departure, the Taxpayer resided at a property he owns jointly with their spouse in Australia ( the Property ). 18. Prior to (and after) their departure from Australia, they attempted to sell the Property but to no avail, as the market at the time did not present a suitable buyer. The Property was advertised for sale for approximately 14 months.
19. The Taxpayer and their spouse acknowledged that the Property was unlikely to sell in the near future, after having changed the appointed sales agent. Whilst the property market in Australia had performed well overall in 20XX/20XX, the price point of the Property meant that there were limited potential buyers and general property market conditions did not necessarily apply. It was on this basis that they made a decision in December 20XX to advertise the property for lease instead of sale. 20. The Property has been rented to tenants under normal commercial lease arrangements at market rent since XX January 20XX and is managed by a local property agent. The first tenants have recently vacated and new tenants had moved into the Property at the end of November 20XX for an initial four-month lease. 21. The Property is debt-free, so no recurring mortgage repayments are required. However, there is a finance facility secured over the Property. 22. The Taxpayer will cause their name to be removed from the electoral roll in Australia.
23. The Taxpayer has cancelled their private health insurance policy prior to their departure from Australia in March 20XX. 24. The Taxpayer has not maintained professional, social or sporting connections in Australia since departing in March 20XX and has not returned to Australia since. This is with the exception of sitting bi-annually on an Investment Committee (which they were formerly Chairman of whilst residing in Australia), which is a non-remunerated role, but allows the Taxpayer to maintain a level of oversight on a few remaining investments they hold. 25. Mail was redirected by Australia Post from the property to the Taxpayer's home address in Country B following his departure. 26. Prior to departure, an Australian discretionary trust and two private companies which the Taxpayer and their spouse were involved in were vested/deregistered, and investments held in the family trust were distributed to the Taxpayer and their spouse personally. This was on the basis their relocation to Country B was intended to be indefinite.
27. Australian financial institutions and relevant investment vehicles in which the Taxpayer has an account or holds investments with have been notified of the Taxpayer's foreign residency status from X April 20XX for withholding tax purposes. 28. The Taxpayer does not hold any substantial financial assets in Australia, relative to the economic and business ties they have in Country B. The Taxpayer maintains an Australian bank account that is linked to the finance facility. 29. The Taxpayer has not made new Australian investments since relocating to Country B in March 20XX. 30. The Taxpayer's XX June 20XX Australian income tax return was prepared on the basis that they were a non-resident of Australia from X April 20XX to XX June 20XX. Their XX June 20XX Australian income tax return will be prepared on the basis that they were a non-resident of Australia from X July 20XX to XX June 20XX. Travel pattern 31. The Taxpayer has not returned to Australia since their departure in March 20XX.
32. If the Taxpayer's spouse and the children decide to return to Australia in mid-20XX, the Taxpayer anticipates visiting Australia approximately twice a year, staying no more than a few months per income year across the two trips. The trips would be to solely visit their family, noting that it is likely that they will vacation with their family outside of Australia so may meet them at the holiday destination rather than coming via Australia. 33. During such future visits to Australia, the Taxpayer anticipates they will stay at the Property (where the Taxpayer's spouse and the children will likely live if they decide to relocate back to Australia). As all of the Taxpayer's personal effects will remain with them in Country B, they will travel with a suitcase of clothing and personal effects they will need during their visits to Australia. Assumption The Taxpayer will remain a tax resident of Country B for every period to which this ruling applies, and the nature of their connection with Australia, as described in these facts and circumstances, will not change during this period.
Section 6(1) of the Income Tax Assessment Act 1936 Does IVA apply to this private ruling? Part IVA of the Income Tax Assessment Act 1936 contains anti-avoidance rules that can apply in certain circumstances where you or another taxpayer obtains a tax benefit, imputation benefit or diverted profits tax benefit in connection with an arrangement. If Part IVA applies, the tax benefit or imputation benefit can be cancelled (for example, by disallowing a deduction that was otherwise allowable) or you or another taxpayer could be liable to the diverted profits tax. We have not fully considered the application of Part IVA to the arrangement you asked us to rule on, or to an associated or wider arrangement of which that arrangement is part. If you want us to rule on whether Part IVA applies, we wil
Resident of Australia for taxation purposes 1. The terms resident and resident of Australia, as applied to an individual, are defined in subsection 6(1) of the Income Tax Assessment Act 1936 . 2. The definition offers four tests to ascertain whether an individual taxpayer is a resident of Australia for income tax purposes. These tests are: • the ordinary concepts test; • the domicile test; • the 183-day test; and • the Commonwealth superannuation fund test. 3. You are a resident if you meet any one of the tests. It does not matter if you do not meet any of the other tests. You are not a resident if you do not meet any of the tests. This means that we must consider all applicable tests before concluding you are a non-resident. The ordinary concepts test 4. Under the ordinary concepts test, you are a resident if you reside in Australia. 5. The term 'reside' is not defined in the Australian income tax law and has its ordinary meaning.
6. 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'. 7. The Commissioner considers the following factors in relation to whether a taxpayer is a resident under the ordinary concepts 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.
8. 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. 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. 9. Because the ordinary concepts test is 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: Logan J in Pike v Commissioner of Taxation [2019] FCA 2185 at 57 reminds us that 'it is no part of the ordinary meaning of reside in the 1936 Act that there be a "principal" or even "usual" place of residence.... It is important that... "resident" not be construed and applied as if there were such adjectival qualifications.' For this reason, the test is not about dominance or exclusivity. Application to your situation
10. We consider your circumstances are not consistent with residing in Australia from the time you relocated to Country B until the end of the ruling period. This is because in your situation: • Physical presence - You have been physically in Country B and not Australia since you relocated there, and you continue to live there. • Intention or purpose - You hold dual citizenship with Australia and Country B. Your stated intention in travelling to Country B is to live there indefinitely, and you anticipate that you will remain living in Country B for the next 5-6 years. If your spouse and children return to Australia in mid-20XX, you only anticipate visiting Australia approximately twice a year, staying for short periods (no more than a few months per income year) solely to visit and stay with your family and attend the occasional vacation with your family outside Australia.
• Behaviour - Your behaviour since being in Country B shows that you have settled there and reflects a degree of continuity, routine or habit that is consistent with relocating to Country B. Your behaviour supports your stated intention to live and work in Country B. • Family and business/employment ties - You were able to continue working for the employer when you went to Country B. Your family currently reside with you in Country B however intend to move back to Australia in mid-20XX while you remain living in Country B. • Maintenance and location of assets - Your personal belongings are located in Country B and will remain with you regardless of whether your spouse and children move back to Australia in mid-20XX. All household and personal items you held in Australia prior to your relocation to Country B were shipped and you have not placed any items in storage in Australia. Additionally, you own a motor vehicle in Country B and hold a Country B driver's licence. Australian financial institutions and investment vehicles in which you had an account or hold investments have been notified of your foreign residency; and
• Social and living arrangements - You have lived in rental accommodation since your arrival in Country B, and currently have a lease that is due to expire in July 20XX. You intend to maintain long term rental accommodation in Country B, whether through a renewal at the current rental in which you reside or another apartment once the lease expires. You engage in memberships and sporting clubs in Country B, and your activities demonstrate a routine and habit associated with living in Country B. 11. From the date you relocated to Country B, you ceased to reside in Australia and you have not been an Australian resident under the ordinary concepts test. Should your wife and children return to Australia in 20XX, this will not change the fact that you do not reside here given your living, social and work arrangements, and the limited time you spend in Australia. Domicile test 12. 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. 13. Whether your domicile is Australia is determined by the Domicile Act 1982
and the common law rules on domicile. 14. Your domicile is your domicile of origin (usually the domicile of your father at the time of your birth) unless you have acquired a domicile of choice elsewhere. To acquire a domicile of choice of a particular country you must be lawfully present there and you must 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. Permanent place of abode 15. 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. 16. 'Permanent' does not mean everlasting or forever, but it is to be distinguished from temporary or transitory. 17. 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.
18. The Full Federal Court in Harding v Commissioner of Taxation [2019] FCA 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. 19. The Commissioner considers the following factors relevant to whether a taxpayer's permanent place of abode is outside Australia: (a) the intended and actual length of the taxpayer's stay in the overseas country; (b) 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; (c) 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; (d) whether any residence or place of abode exists in Australia or has been abandoned because of the overseas absence;
(e) the duration and continuity of the taxpayer's presence in the overseas country; and (f) the durability of association that the person has with a particular place in Australia, such as 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. 20. 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 21. In your case, you were born in Country A and was raised in Country B, having acquired your father's Country B nationality at birth. You later acquired Australian citizenship on XX June 20XX. You and your family resided in Australia from January 20XX to March 20XX where you relocated to Country B on XX April 20XX where you have been working since.
22. We are satisfied that your permanent place of abode from when you relocated to Country B until the end of the ruling period is outside Australia. This considers that: • you intend to indefinitely reside in Country B; • you have stayed in rental accommodation after you arrived in Country B, currently staying in a leased property which can be extended; • you have integrated yourself socially in the Country B; and • you will not return to Australia permanently during the ruling period, only possibly coming to Australia for short periods of time to visit your wife and children (should they relocate back to Australia mid-20XX). 23. The Commissioner is satisfied that your permanent place of abode is outside Australia and it has, therefore, been unnecessary for us to determine whether you abandoned your Australian domicile. You are not a resident of Australia under the domicile test. 183-day test 24. 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 25. You departed Australia to reside in Country B and have been overseas from the date you departed and will continue to reside overseas until the end of the ruling period. 26. You will not be present in Australia for 183 days or more during any of the income years covered by the ruling period. Therefore you are not a resident under this test. The Commonwealth Superannuation Test 27. 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 28. You are not a member on behalf of whom contributions are being made to the Public Sector Superannuation Scheme or the Commonwealth Superannuation Scheme or a spouse of such a person, or a child under 16 of such a person.
29. You are not a resident under this test. Conclusion 30. You do not satisfy any of the four tests of residency from the time you relocated to Country B. The Commissioner is satisfied you have established a permanent place of abode outside Australia in Country B, which will remain during the ruling period. 31. Therefore, you are not a resident of Australia for income tax purposes for the period commencing when you relocated to Country B until the end of the ruling period.