1051772366549 | Legal database

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Edited version of private advice

Authorisation Number: 1051772366549

Date of advice: 26 October 2020

Ruling

Subject: Residency

Question

Are you a resident of Australia for income tax purposes?

Answer

No. Having considered your circumstances as a whole and the residency tests, it is accepted that you are not a resident of Australia for income tax purposes. Further information on residency can be found by searching 'QC 33232' on ato.gov.au

This ruling applies for the following periods:

Year ending 30 June 20XX

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

You are an Australian citizen who relocated to live in Country A in early 20XX to accept a position with a local company. Your adult children elected to remain in Australia and so did not accompany you overseas.

In early 20YY you separated from your wife after she chose to remain in Australia. You divorced in mid-20ZZ.

You commenced a new relationship with an Australian expatriate who lived nearby in mid-20ZZ.

During your time in Country A you frequently visited Australia to see your family, including a relative who was in poor health. You also attended to matters associated with your post-divorce assets when in Australia. In the period 20XX until 20YY you spent between XX and YY days in Australia in any one year. In 20ZZ you spent ZZ days in Australia.

In Country A you rented an unfurnished apartment. You paid for your utilities and broadband access. This residence was continuously maintained throughout this period and you returned there after trips to Australia or other international travel.

Shortly after arrival you also purchased a vehicle and renewed this vehicle a few years later. You also obtained a local driver's license. You left one vehicle in Australia for the benefit of your child in Australia.

You took all personal effects and important documentation to Country A with the intention to depart Australia indefinitely. You obtained local credit cards and a local mobile phone.

You joined 3 local clubs. You did not maintain any professional, social or sporting connections with Australia apart from an oversea membership of one professional organisation.

You were promoted 20XX and held this position until 20YY. You were also appointed a director of listed companies at this time including as a Board member of Company A.

At all times while living in Country A you held residence permits permitting full-time employment. These permits were supplied by your employer.

In mid-20XX until late 20YY you were appointed to a senior position in Company B. You held a senior position together with similar positions in several entities in the group holding structure.

In early 20YY you made the decision to resign from Company B to spend more time with your partner and to do some travelling. After resigning you moved to Country B to live and travel with your partner. Between late 20XX and late 20YY all your personal belongings were in your partner's flat in Country B.

While living in Country B you held visitor vias as there was no alternative visa available.

In late 20Xx you returned to Australia permanently after your relationship with your partner had ended and as the prospects of finding work in Country B were limited.

You have maintained a self-managed superannuation fund and two-family trusts. You also own a holiday home in Australia which is still held in join names with your ex-wife. You also maintained an Australian credit card and a mortgage which you used as an overdraft facility.

You also held cash in overseas based banks as well as shares and interest shares in in your former employer as well as an Australian money market fund.

You also hold interests in private equity in various countries. A significant amount of these private equity interests was acquired after separation from your ex-wife.

You did not inform Medicare of your departure. You did however take care to not access the Medicare system on visits to Australia.

You asked that you be removed from the Australian electoral rolls in 20XX. You did not do so upon departure as you overlooked doing so until then.

You held a private health insurance policy in Australia until your separation form your ex-wife. After then the policy was suspended as your employers provided fully comprehensive world medical and dental insurance.

Neither you nor your ex-wife has ever been employed by the Australian Commonwealth government and neither belongs to any Commonwealth superannuation scheme such as CSS or PSS.

Relevant legislative provisions

Income Tax Assessment Act 1997 Subsection 995-1(1)

Income Tax Assessment Act 1936 Subsection 6(1)

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