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Edited version of your written advice
Authorisation Number: 1012714097851
Ruling
Subject: Residency for tax purposes
Question and answer
Are you a resident of Australia for tax purposes?
No.
This ruling applies for the following periods:
Year ended 30 June 2013
Year ended 30 June 2014
Year ending 30 June 2015
Year ending 30 June 2016
Year ending 30 June 2017
Year ending 30 June 2018
The scheme commenced on:
The scheme has commenced
Relevant facts and circumstances
You were born in Country Y.
You moved to Australia a number of years ago.
You are a citizen of Country Y and Australia.
You and your family departed Australia in 20XX to move to Country X.
It was your intention at this time to depart Australia indefinitely.
You have rented out your house in Australia under a 24 month lease.
You maintain a joint bank account with your spouse in Australia for the purposes of dealing with expenses relating to your Australian rental property.
The bank has been notified of your non-resident status.
You have advised Centrelink, Medicare, your private health insurer and superannuation fund that you have departed Australia indefinitely.
You have been removed from the Australian electoral roll.
You have not returned to Australia since your departure.
Your spouse and children have returned to Australia once for family reasons.
You have a work contract in Country X for a period of two to three years.
You and your family have renewable residence cards for Country X.
Your extended family lives in Country Y.
You live in rental accommodation in Country X under a two year lease.
You took all your belongings with you to Country X.
Your children attend school in Country X.
Neither you nor your spouse are or were Commonwealth Government employees.
Relevant legislative provisions:
Income Tax Assessment Act 1997 Section 6-5
Income Tax Assessment Act 1936 Subsection 6(1)
Reasons for decision
Section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997) provides that where you are a resident of Australia for taxation purposes, your assessable income includes income gained from all sources, whether in or out of Australia. However, where you are a foreign resident, your assessable income includes only income derived from an Australian source.
The terms 'resident' and 'resident of Australia', in regard to an individual, are defined in subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936). The definition provides four tests to ascertain whether a taxpayer is a resident of Australia for income tax purposes. These tests are:
• the resides test
• the domicile and permanent place of abode test
• the 183 day test, and
• the Commonwealth superannuation fund test.
If any one of these tests is met, an individual will be a resident of Australia for taxation purposes.
The resides test is the primary test for determining the residency status of an individual for taxation purposes. If residency is established under the resides test, the remaining three tests do not need to be considered. However, if residency is not established under the resides test, an individual will still be a resident of Australia for taxation purposes if they meet the conditions of one of the other three tests.
The resides test
The resides test considers whether an individual is residing in Australia according to the ordinary meaning of the word 'reside'. As the word 'reside' is not defined in Australian taxation law, it takes its ordinary meaning for the purposes of subsection 6(1) of the ITAA 1936.
The ordinary meaning of the word 'reside', according to the Macquarie Dictionary, 2001, rev. 3rd edition, The Macquarie Library Pty Ltd, NSW, is 'to dwell permanently or for a considerable time; having one's abode for a time', and according to the Compact Edition of the Oxford English Dictionary (1987), is 'to dwell permanently, or for a considerable time, to have one's settled or usual abode, to live in or at a particular place'.
In considering the definition of 'reside', the High Court of Australia, in Federal Commissioner of Taxation v Miller (1946) 73 CLR 93 at page 99-100, per Latham CJ, noted the term 'reside' should be given a wide meaning for the purposes of section 6(1) of the ITAA 1936. Similarly, in Subrahmanyam v Commissioner of Taxation 2002 ATC 2303, Deputy President Forgie said at paragraphs 43 and 44 that the widest meaning should be attributed to the word 'reside'.
The question of whether an individual 'resides' in a particular country is a question of fact and degree and not of law. In deciding this question, the courts have consistently referred to and taken into account the following factors as being relevant:
(i) physical presence in Australia
(ii) nationality
(iii) history of residence and movements
(iv) habits and 'mode of life'
(v) frequency, regularity and duration of visits to Australia
(vi) purpose of visits to or absences from Australia
(vii) family and business ties with Australia compared to the foreign country concerned, and
(viii) maintenance of a place of abode.
The weight given to each factor varies with individual circumstances and no single factor is necessarily decisive. In Shand v Federal Commissioner of Taxation 2003 ATC 2080, the Tribunal stated (at 35):
Questions of residence, domicile, permanent place of abode, have frequently been found by the courts and tribunals to be difficult to assess on a factual level and not easy to define in concrete legal terms.
In your case, you have departed Australia indefinitely, you have not returned to Australia since your departure and you do not have a place of abode available to you in Australia. You travelled with your family to Country X, you have a work contract in Country X as well as long term accommodation.
Based on the circumstances of your specific situation, you are not residing in Australia according to the normal meaning of the word and therefore you are not a resident of Australia under the resides test.
The domicile test
Under this test, a person is a resident of Australia for tax purposes if their domicile is in Australia, unless the Commissioner is satisfied that their permanent place of abode is outside of Australia.
Domicile
A person's domicile is generally their country of birth. This is known as a person's 'domicile of origin'. A person may acquire a domicile of choice in another country if they have the intention of making their home indefinitely in that country (section 10 of the Domicile Act 1982).
In this regard, paragraph 21 of Taxation Ruling IT 2650 Income Tax: Residency - permanent place of abode outside Australia (IT 2650) states that:
In order to show that a new domicile of choice in a country outside Australia has been adopted, the person must be able to prove an intention to make his or her home indefinitely in that country e.g., through having obtained a migration visa. A working visa, even for a substantial period of time such as 2 years, would not be sufficient evidence of an intention to acquire a new domicile of choice.
In your case, your domicile of origin is Country Y. You established Australia as your new domicile of choice when you moved to Australia and became a citizen. There is nothing to indicate that you have established Country X or any other country as your new domicile of choice since then.
Permanent place of abode
The expression 'place of abode' refers to a person's residence, where they live with their family and sleep at night. In essence, a person's place of abode is that person's dwelling place or the physical surroundings in which a person lives (paragraph 12 of IT 2650).
A permanent place of abode does not have to be 'everlasting' or 'forever'. It does not mean an abode in which you intend to live for the rest your life. An intention to return to Australia in the foreseeable future to live does not prevent you in the meantime setting up a permanent place of abode elsewhere (paragraph 14 of IT 2650).
It is clear from the case law that a person's permanent place of abode cannot be ascertained by the application of any hard and fast rules. It is a question of fact to be determined in the light of all the circumstances of each case.
In your case, you are living in long term rental accommodation with your family in Country X and you are able to stay in Country X on a renewable residence card.
The Commissioner is therefore satisfied that you have a permanent place of abode outside of Australia. 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 during the year of income the person will be a resident, unless the Commissioner is satisfied that the person's usual place of abode is outside Australia and the person does not intend to take up residence in Australia.
In your case, you have not returned to Australia since your departure and intend to reside outside of Australia indefinitely. Therefore you are not a resident of Australia under the 183 day test.
Superannuation test
An individual is still considered to be a resident if that person is eligible to contribute to the PSS or the CSS, or that person is the spouse or child under 16 of such a person. To be eligible to contribute to those schemes, you must be or have been a Commonwealth Government employee.
This test is not relevant to your situation.
Your residency status
As you do not meet any of the tests of residency, you are a not resident of Australia for tax purposes.
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