Edited version of your written advice

Authorisation Number: 1051240522626

Date of advice: 23 June 2017

Ruling

Subject: Residency and application of Country A/Australia Double Tax Agreement (DTA)

Question 1

Were you a resident of Australia for the purposes of subsection 6(1) of the Income Tax Assessment Act 1936 during the year ended 30 June 2016?

Answer

Yes, you were a resident of Australia for the purposes of subsection 6(1) of the ITAA 1936 during the year ended 30 June 2016.

Question 2

Will you be a resident of Australia for the purposes of subsection 6(1) of the Income Tax Assessment Act 1936 during the year ending 30 June 2017?

Answer

No, you will not be a resident of Australia for the purposes of subsection 6(1) of the ITAA 1936 during the year ending 30 June 2017.

Question 3

Will you be a resident of Australia for the purposes of subsection 6(1) of the Income Tax Assessment Act 1936 during the year ending 30 June 2018?

Answer

No, you will not be a resident of Australia for the purposes of subsection 6(1) of the ITAA 1936 during the year ending 30 June 2018.

Question 4

Will you be treated solely as a resident of Country A pursuant to Article 4 of the Convention between the Government of Australia and the Government of the Country A of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income [1983] ATS 16 (the Convention) as amended by the Protocol Amending the Convention between the Government of Australia and the Government of the Country A of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income of 6 August 1982 [2003] ATS 13 (collectively the DTA) for the period from 1 January 2016 to 30 June 2016?

Answer

Yes, you will be treated solely as a resident of the Country A under Article 4(2) of the DTA for the period from 1 January 2016 to 30 June 2016.

Question 5

Will you be treated solely as a resident of Country A pursuant to Article 4 of the DTA for the period from 1 July 2016 to 30 June 2017?

Answer

Not applicable.

Question 6

Will you be treated solely as a resident of Country A pursuant to Article 4 of the DTA for the period from 1 July 2017 to 30 June 2018?

Answer

Not applicable.

This ruling applies for the following periods:

Year ended 30 June 2016

Year ending 30 June 2017

Year ending 30 June 2018

The scheme commences on:

1 July 2016

Relevant facts and circumstances

1. You were born in Australia to Australian parents. You attended school and university in Australia. Your parents and siblings live in Australia.

2. Your spouse is a dual citizen of Australia and Country A. Their family lives in Country A.

3. Your children are dual citizens of Australia and Country A.

4. In 2015, your spouse moved back to Country A and has not returned to Australia since that time. They have rented various properties in Country A, where they have lived with your youngest child. Your eldest child is undertaking tertiary education elsewhere in Country A. Your middle child has lived with your spouse in Country A since then, with the exception of a six month period in which they will attend an Australian boarding school. Your two eldest children have also occasionally returned to Australia for holidays.

5. In the year ended 30 June 2016, you departed Australia for Country A. Your stay in Country A is open ended, although you do not intend to stay in Country A indefinitely. You intend to return to Australia at some point in the future, most likely in the 2018 income year, but you have no intention of returning to Australia to live before that time.

6. Since departing Australia, you have stayed at your parent’s home or in temporary accommodation while visiting Australia. You kept personal effects at the property rented by your spouse in Country A.

7. In the year ended 30 June 2016, you spent around 100 days in Country A and more than 183 days in Australia. While in Country A, you spent the majority of your time at your spouse’s property.

8. In 2016, you and your spouse together rented a new property in Country A. You keep personal effects at this property.

9. In 2017, your spouse purchased a property in Country A. You and your family will move to this property in 2017.

10. You were not physically present in Australia for more than 183 days during the year ending 30 June 2017.

11. You will be in Country A for the majority of the year ending 30 June 2018.

12. You will not be physically present in Australia for 183 days or more in the year ending 30 June 2018.

13. Since departing Australia, the purposes of your visits have been to visit family and to deal with your Australian business obligations.

14. You are the managing director of an Australian company of which you control a significant portion of the issued capital. You are an employee of a related Country A Limited Liability Company (LLC) of you have effective control. You perform duties in relation to the Country A LLC primarily in Country A.

15. You hold interests in a number of Australian proprietary companies. You are not involved in the day to day running of the operations of these companies.

16. You, along with your family and entities related to you, are a beneficiary of a number of trusts that hold primarily Australian assets, including some residential property in Australia.

17. Your personal mail addressed to Australian addresses is forwarded to you in Country A. Your mail in relation to your investments is forwarded to the person who manages those investments.

18. You have financial accounts and credit cards in both Australia and Country A.

19. You own motor vehicles in Australia and Country A.

20. You have access to two residential properties in Australia, only one of which is currently furnished and available for use. You have not stayed at these properties since departing Australia. You do not keep personal effects at these properties.

21. You do not participate in community and social activities in Australia. You ceased social activities in Australia in 2015.

22. You have participated in a number of community and social activities in Country A since 2015 including sports, philanthropic enterprises, and involvement with your children’s schools. Since 2016, you have been undertaking part time tertiary study in Country A.

23. You have a pet in Country A and are involved in the care of this animal.

24. You have retained your Australian driver’s licence. You hold a Country A driver’s licence. You continue to hold an Australian Medicare card.

25. Your spouse and children hold private health insurance in Country A and Australia.

26. You will be treated as a Country A resident for federal and state tax purposes from the 2016 calendar year.

27. You have an relevant visa that allows you unlimited entries to Country A.

28. You are enrolled to vote in Australian elections. You have voted in one election since 2015, as you were in the country at that time.

29. Neither you nor your spouse have a relevant interest in a Commonwealth superannuation fund under the Superannuation Act 1976 or the Superannuation Act 1990.

Relevant legislative provisions

Income Tax Assessment Act 1936 subsection 6(1).

Convention between the Government of Australia and the Government of Country A of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income [1983] ATS 16 (the Convention)

Protocol Amending the Convention between the Government of Australia and the Government of Country A of America for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income of 6 August 1982 [2003] ATS 13

Convention Article 4(1)(a)(ii)

Convention Article 4(1)(b)(iii)

Convention Article 4(2)

Domicile Act 1982

Superannuation Act 1976

Superannuation Act 1990

Reasons for decision

Question 1

Summary

1. You were a resident of Australia for the purposes of subsection 6(1) of the Income Tax Assessment Act 1936 during the year ended 30 June 2016 under the 183 day test.

Detailed reasoning

1. The statutory definition of resident is set out in subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936) and, in respect of individuals, states that:

resident or resident of Australia means:

(a) a person, other than a company, who resides in Australia and includes a person:

(i) whose domicile is in Australia, unless the Commissioner is satisfied that the person’s permanent place of abode is outside Australia;

(ii) who has actually been in Australia, continuously or intermittently, during more than one‑half of the year of income, unless the Commissioner is satisfied that the person’s usual place of abode is outside Australia and that the person does not intend to take up residence in Australia; or

(iii) who is:

(A) a member of the superannuation scheme established by deed under the Superannuation Act 1990; or

(B) an eligible employee for the purposes of the Superannuation Act 1976; or

(C) the spouse, or a child under 16, of a person covered by sub subparagraph (A) or (B)

1. The above definition provides four tests for determining whether an individual is a resident for income tax purposes. These are:

a. residence according to ordinary concepts;

b. the domicile and permanent place of abode test;

c. the 183 day test; and

d. the Commonwealth superannuation fund test.

1. The tests that are relevant to your circumstances are tests (a) to (c). You do not satisfy test (d), as you do not have a relevant interest in a Commonwealth superannuation fund.

Residence according to ordinary concepts

1. Where a person resides in Australia under ordinary concepts, Australian residency is established and the other tests need not be considered: FCT v Applegate 79 ATC 4307; (1979)9 ATR 899 (Applegate); Paragraph 12 of Taxation Ruling TR 98/17 Income Tax: residency status of individuals entering Australia (TR 98/17).

1. Whether a person is a resident of Australia is a question of fact and degree to be determined having regard to the circumstances of the particular case.

1. As there is no definition of the word 'reside’ in Australian income tax law, the ordinary meaning of the word must be considered. The Macquarie Dictionary defines 'reside’ as 'to dwell permanently or for a considerable time; have one's abode for a time’, and the Shorter Oxford English Dictionary defines it 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'.

1. Paragraph 18 of TR 98/17 states that the period of an individual’s physical presence in Australia is not, by itself, decisive. Instead, an individual’s behaviour over the time spent in Australia should be examined to see if it reflects a degree of continuity, routine or habit that is consistent with residing in Australia.

1. Paragraphs 20 to 21 of TR 98/17 state that all the facts and circumstances that describe an individual’s behaviour in Australia are relevant, and no individual factor is necessarily decisive, but that the following factors will be particularly useful: intention or purpose of presence; family and business/employment ties; maintenance and location of assets; and social and living arrangements.

Intention or purpose of presence

1. Paragraphs 47 and 48 of TR 98/17 state:

47. The individual's intention, purpose or reason for being in Australia assists in determining whether an individual resides here: Gregory [v. DCT (1937) 57 CLR 774; (1937) 4 ATD 397]. While individuals may have multiple reasons, there is usually a main purpose to their presence. …

48. A settled purpose, such as employment or education, may support an intention to reside in Australia. However, the intention must be more than merely being a traveller or visitor who may supplement their savings by obtaining casual employment.

1. In the year ended 30 June 2016, the purposes of your visits to Australia have been to visit family and to deal with your Australian business obligations.

Family and business/employment ties;

1. Since 2015, the majority of your immediate family has lived in Country A. Your parents and siblings live in Australia; your spouse’s family lives in Country A.

1. Your business ties are predominantly with Australia. Your employer since 2015 is a related entity, however you performed the majority of your duties for this entity in Country A during the year ended 30 June 2016.

Maintenance and location of assets

1. You hold interests in private companies and trusts that are residents of Australia and that derive income predominantly from Australian investments. The assets held in these structures include residential property; however you have not had an Australian residence at which you kept personal effects since 2015.

1. You own motor vehicles in Australia and Country A. You have financial accounts and credit cards in both Australia and Country A.

Social and living arrangements.

1. While in Country A, you spent the majority of your time at the property in Country A with your spouse and younger children. You kept personal effects at this property.

1. You have access to two residential properties in Australia, only one of which is currently furnished and available for use. You have not stayed at these properties since departing Australia. You do not keep personal effects at these properties.

1. Since departing Australia, you have stayed at your parent’s home or in temporary accommodation while visiting Australia.

1. You do not participate in community and social activities in Australia. You ceased social activities in Australia in 2015. You have participated in a number of community and social activities in Country A since 2015 including sports, philanthropic enterprises, and involvement with your children’s schools.

1. You have a pet in Country A and are involved in the care of this animal.

Conclusion

1. On balance, your stronger connections during the year ended 30 June 2016 are with Country A. You therefore did not reside in Australia within the ordinary meaning of the term.

Domicile and permanent place of abode test

1. Subparagraph (a)(i) of the definition of 'resident of Australia’ includes a person whose domicile is in Australia, unless the Commissioner is satisfied that the person’s permanent place of abode is outside Australia.

1. Taxation Ruling IT 2650 Income tax: residency - permanent place of abode outside Australia (IT 2650) sets out the Commissioner’s view on the application of this test.

1. Paragraph 8 of IT 2650 states that 'domicile’ is a legal concept to be determined according to the Domicile Act 1982 and to the common law rules which the courts have developed in the field of private international law. The primary common law rule is that a person acquires at birth a domicile of origin, being the country of their father's permanent home. A person will retain their domicile of origin unless and until they acquire another domicile, for example, a domicile of choice.

1. Section 10 of the Domicile Act 1982 provides that in order to acquire a domicile of choice in a country, a person must have the intention to make their home indefinitely in that country.

1. As you were born in Australia to Australian parents, your domicile of origin is Australia.

1. As you have not decided to live permanently outside Australia but intend to return to Australia to live in the future, you do not have the requisite intention to have acquired a domicile of choice. Your domicile therefore remains in Australia.

1. You will therefore be a resident of Australia under this statutory test unless the Commissioner is satisfied that you have a permanent place of abode outside Australia.

Permanent place of abode

1. Paragraph 12 of IT 2650 cites the cases of R v Hammond (1852) 117 ER 1477 at 1488; Levene v IRC (1928) AC 217 and IRC v Lysaght (1928) AC 234 to conclude that:

The expression 'place of abode’ refers to a person's residence, where one lives with one's family and sleeps 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.

1. The leading case on whether a taxpayer has their permanent place of abode outside Australia is Applegate. In Applegate, Fisher J held that the word 'permanent’ did not mean everlasting or forever, but is used in the sense of being contrasted with temporary or transitory. According to Fisher J (79 ATC at 4317; 9 ATR at 910-911), a 'permanent place of abode’ is:

...the taxpayer's fixed and habitual place of abode. It is his home, but not his permanent home. It connotes a more enduring relationship with the particular place of abode than that of a person who is ordinarily resident there or who has there his usual place of abode. Material factors for consideration will be the continuity or otherwise of the taxpayer's presence, the duration of his presence and the durability of his association with the particular place.

1. Paragraph 23 of IT 2650 sets out the following factors that the Commissioner considers to be relevant in determining whether a taxpayer has a permanent place of abode 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, i.e. maintaining bank accounts 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.

Application of the factors from IT 2650

1. Your intention is to remain in Country A only temporarily, and then to return to Australia at an unspecified time in the future. This will not be before 2018.

1. The property rented by your spouse in Country A was available for your use. You kept personal effects at this property and spent the majority of your time in Country A staying at this location.

1. You have access to two residential properties in Australia, only one of which is currently furnished and available for use. You have not stayed at these properties since departing Australia. You do not keep personal effects at these properties.

1. Since departing Australia, you have stayed at your parent’s home or in temporary accommodation while visiting Australia.

1. You have spent a substantial amount of time in both Country A and Australia.

1. You have maintained strong ties with Australia. You have retained your Australian bank accounts and credit cards, your Australian driver’s licence, your Australian private health insurance, and your enrolment to vote. You also hold interests in private companies and trusts that hold substantial assets, including Australian real property. You have also retained motor vehicles in Australia.

1. You also have strong family ties with Australia, as your parents and siblings continue to live in Australia. However, your children and your spouse, as well as your spouse’s family, resided in Country A.

1. On consideration of the facts, you had a permanent place of abode in Country A for the year ended 30 June 2016. The place of abode that you had was not fleeting or transitory, but was permanent. It is not relevant that you did not remain there for the duration of your stay in Country A, as during the time that property was leased, it was the sole property that your family resided in. The durability of your connection with this place of abode gives it the necessary character of permanence.

1. You will therefore not be considered a resident of Australia under this test.

The 183 day test

1. The 183 day test will deem a person to be a resident of Australia where that person has been in Australia during more than one-half of the year of income, unless the Commissioner is satisfied that the person’s usual place of abode is outside Australia and that the person does not intend to take up residence in Australia.

1. Between 1 July 2015 and 30 June 2016, you spent more than 183 days in Australia. Therefore, to not be a resident of Australia, the Commissioner will need to be satisfied that your usual place of abode is outside Australia, and that you do not intend to take up residence in Australia.

1. The meanings of the expressions 'permanent place of abode’ and 'usual place of abode’ are not identical; however, there may be overlap in their application.

1. As discussed above, you have a permanent place of abode in Country A. This place of abode is also your usual place of abode, as it is the place that you return to on a consistent basis. As discussed above, you do not have a consistent place of abode in Australia, as you do not store any of your personal effects at either of the Australia residential properties available to you.

1. Your intention is to return to Australia, although not before the 2018 income year. However, you do intend to again take up physical residence in Australia in the relatively near future.

1. Therefore, you will not meet the requirements for exclusion from the 183 day test, and you will be considered a resident of Australia for the year ending 30 June 2016.

The Commonwealth superannuation fund test

1. As neither you nor your spouse qualify as members of a relevant Commonwealth superannuation fund, this test will not apply to you.

Question 2

Summary

1. You will not be a resident of Australia for the purposes of subsection 6(1) of the Income Tax Assessment Act 1936 during the year ended 30 June 2017.

Detailed reasoning

Residence according to ordinary concepts

1. The tests and relevant factors for determining residence according to ordinary concepts have been set out in Question 1 above. Their application to the year ending 30 June 2017 is set out below.

Intention or purpose of presence

1. In the year ended 30 June 2017, the purpose of your visits to Australia have been to visit family and to deal with your Australian business obligations.

Family and business/employment ties;

1. Your family and business/employment ties remained substantially the same as in the year ended 30 June 2016.

Maintenance and location of assets

1. Your assets remained substantially the same as in the year ended 30 June 2016.

Social and living arrangements.

1. When you were in Country A, you spent the majority of your time residing with your family in your family’s two consecutive homes in Country A. You have kept personal effects at these properties during the year ending 30 June 2017. Since 2016, your name has also been on the lease of the home being occupied by you and your family in Country A.

1. As was the case in the year ended 30 June 2016, you did not stay or keep personal effects at the residential properties in Australia. Since departing Australia, you have stayed at your parent’s home or in temporary accommodation while visiting Australia.

1. You do not participate in community and social activities in Australia. You ceased social activities in Australia in 2015. You have participated in a number of community and social activities in Country A since 2015 including sports, philanthropic enterprises, and involvement with your children’s schools.

1. You have a pet in Country A and are involved in the care of this animal.

Conclusion

1. During the year ending 30 June 2017, you continued to spend time in Australia, but you spent significantly more time in Country A. Your connections with Country A did not decrease during this income year; in fact, they have increased Therefore, on balance, your stronger connections during the year ending 30 June 2017 are with Country A. You therefore did not reside in Australia within the ordinary meaning of the term.

1. You are therefore not a resident under this test.

Domicile and permanent place of abode test

1. As discussed in Question 1, your domicile is in Australia. However, you continue to have a permanent place of abode outside Australia; namely, the houses in Country A rented by your spouse and then by you and your spouse together.

1. You are therefore not a resident under this test.

The 183 day test

1. In the year ending 30 June 2017, you will not spend 183 days or more in Australia, therefore this test will not apply.

The Commonwealth superannuation fund test

1. As neither you nor your spouse qualify as members of a relevant Commonwealth superannuation fund, this test will not apply to you.

Question 3

Summary

1. You will not be a resident of Australia for the purposes of subsection 6(1) of the Income Tax Assessment Act 1936 during the year ended 30 June 2018.

Detailed reasoning

Residence according to ordinary concepts

1. For the year ending 30 June 2017, your circumstances will mostly not differ from the circumstances set out in relation to the year ending 30 June 2017. Therefore, the analysis of residency will not change for this period. The primary difference in facts and circumstances will be that your family will be living a property purchases by your spouse in Country A.

1. During this period, the purpose of your presence in Australia will be to visit family and to deal with your Australian business obligations. You will stay at your parent’s home or in temporary accommodation while visiting Australia. You will not stay at your Australian residential properties.

1. Your assets will remain substantially the same as in the two previous income years, with substantial interests located in Australia.

1. Your family and business/employment ties will remain substantially the same as in the two previous income years.

1. You will continue to carry out your everyday activities in substantially the same manner, and you will not return to Australia to reside for long periods of time, nor in a particular place of residence set aside for your use. Your level of connection with Australia will not increase in comparison with the year ending 30 June 2017. Therefore, the same analysis will continue to apply and you will not be considered to reside in Australia within the ordinary meaning of the term during the year ending 30 June 2017.

1. You are therefore not a resident under this test.

Domicile and permanent place of abode test

1. As discussed above, your domicile is in Australia.

1. However, you have a permanent place of abode outside Australia; namely, the house rented by you and your spouse in Country A. When you move to the property purchased by your spouse in Country A, that property will be your permanent place of abode, where you will live with your family on a permanent basis.

1. You are therefore not a resident under this test.

The 183 day test

1. In the year ending 30 June 2018, you will not spend 183 days or more in Australia, therefore this test will not apply.

The Commonwealth superannuation fund test

1. As neither you nor your spouse qualify as members of a relevant Commonwealth superannuation fund, this test will not apply to you.

Question 4

Summary

1. You will be considered to be solely a resident of Country A under the tie breaker article of the DTA for the period from 1 January 2016 to 30 June 2016.

Detailed reasoning

1. Following the reasoning in Question 1, you are considered to be a resident of Australia for tax purposes in the income year ending 30 June 2016. You are therefore a 'resident of Australia’ as defined in Article 4(1)(a)(ii) of the DTA.

1. You are considered to be a resident of Country A for Country A tax purposes from 1 January 2016 to 31 December 2016. You are therefore a 'resident of Country A’ as defined in Article 4(1)(b)(iii) of the DTA.

1. Where, under the DTA, an individual is a resident of both Country A and Australia, the tie-breaker test in Article 4(2) of the DTA will apply to deem the individual to be a resident of only one of those countries. Article 4(2) of the DTA provides that:

Where by application of paragraph (1) an individual is a resident of both Contracting States, he shall be deemed to be a resident of the State:

(a) in which he maintains his permanent home;

(b) if the provisions of sub-paragraph (a) do not apply, in which he has an habitual abode if he has his permanent home in both Contracting States or in neither of the Contracting States; or

(c) if the provisions of sub-paragraphs (a) and (b) do not apply, with which his personal and economic relations are closer if he has an habitual abode in both Contracting States or in neither of the Contracting States.

For the purposes of this paragraph, in determining an individual's permanent home, regard shall be given to the place where the individual dwells with his family, and in determining the Contracting State with which an individual's personal and economic relations are closer, regard shall be given to his citizenship (if he is a citizen of one of the Contracting States).

Permanent home

1. The term 'permanent home’ is not defined in the DTA. Where a term is not defined, Article 3(2) of the DTA provides that it will take the meaning that it has under Australian income tax law. There is, however, no specific definition of 'permanent home’ in the Australian tax legislation.

1. The Commissioner’s views on the interpretation of double tax agreements are set out in Taxation Ruling 2001/13 Income tax: Interpreting Australia's Double Tax Agreements (TR 2001/13).

1. In particular, paragraphs 101 to 105 discuss the decision of Thiel v FCT (1990) 171 CLR 338, in which the High Court concluded that it was permissible to have regard to the Commentaries to the OECD Model Conventions in the interpretation of Australia’s double tax agreements. In respect of the equivalent to Article 4(2), the OECD Commentary states that:

12. …in the application of the Convention (that is, where there is a conflict between the laws of the two States) it is considered that the residence is that place where the individual owns or possesses a home; this home must be permanent, that is to say, the individual must have arranged and retained it for his 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.

13. As regards the concept of home, it should be observed that any form of home may be taken into account (house or apartment belonging to or rented by the individual, rented furnished room). But the permanence of the home is essential; this means that the individual has arranged to have the dwelling available to him at all times continuously, and not occasionally for the purpose of a stay which, owing to the reasons for it, is necessarily of short duration (travel for pleasure, business travel, educational travel, attending a course at a school, etc.).

1. Note that the OECD Model Convention uses slightly different language, as it refers to the taxpayer having a 'permanent home available’, whereas the DTA asks whether the taxpayer 'maintains’ a permanent home. Article 4(2) further provides that, in determining a person’s permanent home, regard is given to the place where they dwell with their family.

1. During the relevant period, your spouse had rented a home in Country A. When you were in Country A, you stayed at this residence. Although you did not necessarily reside there for long periods of time, this home was available to you for your use continuously. When you were in Country A, you more commonly resided here than anywhere else. You also kept your personal effects at this residence and were not required to remove them when you were not staying there.

1. While your elder children did not always reside with your spouse, this was because they were attending educational institutions that required them to live away from the family home. You did not reside with them during this period.

1. Therefore, from July 2015 to June 2016, you maintained a permanent home in Country A.

1. The test in Article 4(2)(a) will therefore depend on whether the fact that you had properties in Australia that were available for your use means that you maintained a permanent home in Australia.

1. Although you had access to these properties throughout this period, the facts in relation to your usage of the properties indicate that you did not treat these residences as your permanent home, as they were not commonly used by you in a manner which would be consistent with long term residence. In addition, it is strongly persuasive that none of your family resided in either property during this time.

1. Therefore, as you maintained your permanent home in Country A during the relevant period, you will be considered to be solely a resident of Country A under the tie breaker test in Article 4(2) of the DTA.

Question 5

1. As you are not considered to be a resident of Australia during the year ending 30 June 2017, Article 4(2) of the DTA will not apply to you.

Question 6

1. As you are not considered to be a resident of Australia during the year ending 30 June 2018, Article 4(2) of the DTA will not apply to you.

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