Edited version of private advice

Authorisation Number: 1051799050664

Date of advice: 23 March 2021

Ruling

Subject: Residency of Australia for taxation purposes

Question

Are you a resident of Australia for taxation purposes for the 20XY income year?

Answer

Yes

This ruling applies for the following period:

Year ended 30 June 20XX

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

You were born in Australia.

You are a citizen of Australia.

You are not a permanent resident of any other country.

You cannot become a permanent resident of Country Z until you are over XX years old.

You went to Country Z to live late 20XX.

You enter Country Z on an entry visa which allows you to be in Country Z for XX days.

You rent a villa in Country Z and you have a lease on this villa.

You consider at present that Country Z is your place of residence.

You took only personal items to Country Z with you.

You are legally separated from your ex-spouse and they retained all properties and household items.

You have the following assets in Country Z:

•                     Household items

•                     Personal items

You have left other items in storage in Australia at your sister's house.

You have a partner in Country Y.

You enter Country Y on an entry visa which allows you to be in Country Y for XX days.

You have personal items in Country Y.

You intend on living long term with your partner in Country Y.

You do not have any social or sporting connections in Country Z or Country Y.

You came to Australia in early 20XY for your child's birthday and have not been able to leave due to the pandemic.

You intend on getting a job while in Australia.

You have predominantly stayed with your child while in Australia but have also stayed with other family members and friends.

You cannot return to Country Z or Country Y at present as you are not a citizen of either country.

Your villa in Country Z is not being used whilst you are in Australia.

You bought a car while you were in Australia so you could have mobility.

You have no assets in Australia.

You receive an Australian pension.

You are not eligible to contribute to the relevant Commonwealth super funds.

Relevant legislative provisions

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

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, if you are a foreign resident, your assessable income includes only income derived from an Australian source (subsection 6-5(3) of the ITAA 1997).

The terms resident and resident of Australia, regarding 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. These tests are:

1.            the resides test

2.            the domicile tests

3.            the 183-day test

4.            the superannuation tests

The primary test for deciding the residency status of an individual is whether the individual resides in Australia according to the ordinary meaning of the word resides. However, where an individual does not reside in Australia according to ordinary concepts, they may still be a resident of Australia for tax purposes if they meet the conditions of one of the other three tests.

1. 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. 3^rd 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 country is a question of fact and degree and not of law. In deciding this question, the courts have consistently referred to and considered 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.

You left Australia in 20XX with the intention of leaving permanently. You rent a property in Country Z on a XX years lease. You have a partner in Country Y who you visit regularly. Before the pandemic, you spent the majority of the time in Country Y with her. These factors point to you being a non-resident.

However, your circumstances changed in the 20XY year. You arrived in Australia early in the year for your child's birthday. Prior to 20XY you have made a number of trips to Australia in the 20XY income year. You intend on getting work in Australia while you are waiting to return to Country Z. You are predominantly staying with your child while in Australia and with other family members from time to time. Due to the pandemic you have been unable to leave Australia. You also do not know when you are going to leave.

Disregarding factors that relate to the Covid pandemic, there are also factors that show the connections you had outside Australia were not strong. You enter Country Z and Country Y on an entry visa which allows you to be in both countries for only XX days at a time.

You are unable to obtain permanent residency before you reach the age of XX. Even before the pandemic you regularly visited Australia.

Based on the information provided to us you have maintained a continuity of association with Australia as you were in Australia for XXX days in the 20XY income year living and staying with family. You also are unable to stay in Country Z or Country Y consistently for significant amounts of time due to the nature of your Visa.

You are a resident under this test.

2. The domicile test

If a person's domicile is Australia, they will be an Australian resident unless the Commissioner is satisfied, they have a permanent place of abode outside of Australia. In order to show that a new domicile of choice in a country outside of Australia has been adopted, the person must be able to prove an intention to make his or her home indefinitely in that country.

The concept of Domicile was discussed in the Marriage of (1980) 5 Fam LR 662:

A person may abandon his domicile of origin and acquire a domicile of choice but in order to establish a change of domicile there must be clear evidence of an intention to abandon the domicile of origin and to make a new permanent home in the country to which the person has removed. In my view a person cannot be said to acquire a new domicile until there has been a firm intention of establishing a permanent residence in another country and also the confirmation of that intention by actual residence in that country.

Declarations as to intention are rightly regarded in determining the question of a change of domicile, but they must be examined by considering the person to whom, the purposes for which, and the circumstances in which they are made and they must further be fortified and carried into effect by conduct and action consistent with the declared expression:

The Commissioner's view on how a domicile of choice may be acquired can be found in Taxation Ruling IT 2650 Income Tax: Residency - permanent place of abode outside Australia, at paragraph 21:

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.

Ross v Ross [1930] AC 1 at 6-7 per Lord Buckmaster... Where the court finds that at a relevant point of time there is a conflict between the actual conduct of the party concerned and the verbal expression of his intention doubtless the court will in most cases prefer the act to the word - as an ancient proverb puts it: "what you do speaks so loudly that I cannot hear what you say."

Further, in Fremlin v Fremlin (1913) 16 CLR 212; [1913] HCA 25 (Fremlin v Fremlin) Per Barton J:

In Winans v. Attorney-General, Lord Halsbury L.C. said:-"Now the law is plain, that where a domicile of origin is proved it lies upon the person who asserts a change of domicile to establish it, and it is necessary to prove that the person who is alleged to have changed his domicile had a fixed and determined purpose to make the place of his new domicile his permanent home." In the much older case of Udny v. Udny Lord Westbury said: -"Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited time. This is a description of the circumstances which create or constitute a domicile, and not a definition of the term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that residence originally temporary, or intended for a limited period, may afterwards become general and unlimited, and in such a case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicile is established." Lord Curriehill in the case of Donaldson v. M'Clure says: -"To abandon one domicile for another means something far more than a mere change of residence. It imports an intention not only to relinquish those peculiar rights, privileges and immunities which the law and constitution of the domicile confer on the denizens of the country in their domestic relations, in their business transactions, in their political and municipal status, and in the daily affairs of common life, but also the laws by which the succession to property is regulated after death. The abandonment or change of a domicile is therefore a proceeding of a very serious nature, and an intention to make such an abandonment requires to be proved by satisfactory evidence." Lord Halsbury, in Marchioness of Huntly v. Gaskell, expressed strong approval of Lord Curriehill's judgment, quoting this passage.

Your domicile of origin is Australia.

You have not taken any steps to change your domicile.

Therefore, you will be a resident of Australia unless the Commissioner is satisfied your permanent place of abode is overseas.

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.

A permanent place of abode does not have to be 'everlasting' or 'forever'. It does not mean an abode in which a person intends to live for the rest of his or her life. An intention to return to Australia in the foreseeable future to live does not prevent the taxpayer in the meantime setting up a permanent place of abode elsewhere.

The Commissioner is not satisfied that you set up a permanent place of abode outside Australia for the following reasons:

•                     you can only be in Country Z for XX days at a time

•                     you cannot be in Country Z permanently

•                     you can only be in Country Y XX days at a time

•                     you cannot be in Country Y permanently

•                     you move between Country Z and Country Y

•                     you can't become a permanent resident of Country Z until you are XX years old

•                     the visas you are on when entering both Country Z and Country Y do not permit you to be in either country on a permanent basis.

•                     you move from country to country in order to meet the requirements of your visas.

As stated above the Commissioner is not satisfied that you have a permanent place of abode outside Australia.

You are a resident under this test.

3. The 183-day test

Under the 183 day test, a person is a resident of Australia if they are actually physically present in Australia for more than 183 days in an income year unless the Commissioner is satisfied that their usual place of abode is outside of Australia and they have no intention of taking up residence here.

You were in Australia for more than 183 days in the 20XX, 20YX and 20XY income years.

The Commissioner is of the opinion that you are a resident under this test for the 20XY income year as you were in Australia for XXX days.

The Commissioner is not satisfied that your usual place of abode is outside Australia as you are not able to remain permanently in either Country Z or Country Y.

You are not able to return to either Country Z or Country Y as you are not a citizen of either country and you are considered a foreigner in each country.

You are a resident under this test.

4. The superannuation tests

This test covers Commonwealth government employees - members of the Commonwealth superannuation funds (as well as their spouses and children under 16 years of age).

A person is a resident under this test if they are:

•                     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

•                     the spouse, or a child under 16, of a person covered by either of the above.

You are not a resident under this test.

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