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Edited version of your written advice

Authorisation Number: 1051391554934

Date of advice: 6 July 2018

Ruling

Subject: Residency – individual

Question

Are you a resident of Australia for the purposes of subsection 6(1) of the Income Tax Assessment Act 1936 from 1 July 2017 to 30 June 2018 (the 2018 Period)?

Answer

No

This ruling applies for the following period:

Year ending 30 June 2018

The scheme commences on:

1 July 2017

Relevant facts and circumstances

Citizenship and Permanent Residency

Social and community connections

Living Arrangements Overseas

Travel Movements

Other information

Relevant legislative provisions

Income Tax Assessment Act 1936 subsection 6(1)

Income Tax Assessment Act 1997 section 104-165

Reasons for decision

Summary

Detailed reasoning

Residence according to ordinary concepts

Conclusion

Domicile test

Permanent place of abode

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.

It follows that it is in my view proper to pay greater regard to the nature and quality of the use which a taxpayer makes of a particular place of abode for the purpose of determining whether it qualifies as his permanent place of abode. His intentions with respect to the duration of his residence is just one of the factors which has relevance. Obviously if his stay is purely temporary and he intends to move on or return to Australia at some definite point of time this denies the place of abode an essential characteristic of a home, namely durability. Moreover it seems appropriate to view objectively the nature and quality of the use which the taxpayer makes of the place of abode to determine whether it has the characteristics of his fixed place of abode, his home. It is to my mind perfectly consistent with the establishing of a home in a particular place that the taxpayer is aware that the duration of his enjoyment of the home, although indefinite in length, will be only for a limited period. The knowledge that eventually he will return to the country of his domicile does not in my opinion deny him a capacity to make his home outside of his country of domicile. Such a conclusion is particularly open in the present circumstances where the taxpayer was not a completely free agent in the choice of when to return, it being a matter for negotiation between him and his employers.

To my mind the proper construction to place upon the phrase ‘permanent place of abode’ is that it 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.

[21] To determine whether a place of abode is a permanent place of abode it is necessary to have regard to the nature and quality of the use made of that place, the continuity or otherwise of the [person’s] presence, the duration of [his/her] presence and the durability of [his/her] association with the particular place. Greater weight should be given to these factors than to … a person’s stated intentions. This is an objective analysis. A permanent place of abo[d]e is a fixed and habitual place of abode without needing to be a permanent home.

[22] A permanent place of abode outside Australia is not the same as a temporary or transitory place of abode outside Australia. [Citations omitted.]

Consideration of relevant factors regarding permanent place of abode

Conclusion

The 183 day test

Conclusion


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