Edited version of private advice

Authorisation Number: 1051806556157

Date of advice: 16 February 2021

Ruling

Subject: Residency

Question

Are you a resident of Australia for taxation 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 ended 30 June 20XX

Year ending 30 June 20XX

Year ending 30 June 20XX

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

You are a citizen of Country Z.

You and your spouse have lived in Australia on and off for the past XX years.

In early 20XX, you commenced negotiations with Company Z to take on international local employment with the company.

You signed a letter of employment with Company Z in mid 20XX at the Country Z consulate in Country Y. The employment contract was to commence from mid 20XX for several years. It was possible that the term could be extended by mutual agreement between you and Company Z.

Due to an unexpected development on the project, Company Z requested that you work in Country X for an initial period before then mobilising to your role in Country W. The sole purpose of your time in Country X was to oversee the engineering design works for the Country W mine before then moving directly to the mine site in Country W.

You entered a fixed term agreement with Company Y to fulfil the project representative role in Country X. You had to be engaged by the local entity in Country X in order to obtain a Country X working visa. Your Country X contract formally commenced mid 20XX and was due to be completed by late 20XY. After this time, you were to transfer directly to the Country W entity.

You permanently departed Australia to commence your employment in Country X mid 20XX.

You obtained a Country X work permit. This was valid until late 20XY.

The engineering works in Country X were completed earlier than expected and you were due to commence your local employment contract with Company Z, starting on mid 20XY.

Due to reasons outside of your control, primarily the civil unrest in Country W, you could not mobilise to Country W in mid 20XY. You remained in Country X and performed your role remotely from Country X before subsequently moving to Country W in late 20XY, once it was safe to do so.

You signed an updated Country W employment contract at the Company Z office late 20XY. The Country W contract has a period of employment until late 20YY.

You have a Country W visa, which provides you with the right to work and reside in Country W.

This was approved and granted late 20XY and is valid for several years.

At the end of the term, you can make an application to the Country W authority to renew your Country W visa for an additional period if required.

Living arrangements

In Australia

In mid 20XX, you sold your Australian home. This property was jointly owned with your spouse. The property sale settled in mid 20XX.

You have sold or disposed of most of your belongings such as your furniture, books, appliances and general possessions. Your remaining personal belongings (i.e. selected furniture, minor clothing items and personal tools) is kept in storage with a family friend in Australia.

You do not have a vehicle or any other assets in Australia.

In Country X

Company Z provided you with a serviced apartment in Country X.

The apartment in Country X was available for your exclusive use at all times. If you travelled, you would keep a key for your Country X apartment, leave your belongings there and return to the apartment at the end of the trip.

You took most of your personal belongings with you to Country X.

In Country W

You are leasing furnished accommodation in Country W.

The lease is in your name and you are responsible for the rental bond, cleaning, minor maintenance, utilities and body corporate fees (monthly maintenance, portion of water usage, etc).

Although the accommodation is furnished, you and your spouse have purchased a washing machine, dryer, TV, bedding and specific furniture items, and other electronic/white goods for the home.

You pay for access to cable TV, mobile service and internet in Country W.

You and your spouse do not have any dependent children.

Your spouse was not able to immediately join you in Country X in mid 20XX due to their parent's poor and deteriorating health.

Your spouse needed to remain in Australia to care for their parent.

Your spouse made frequent trips to Country X to visit you.

Your spouse purchased a home in Australia in her own name.

You pay the mortgage on this property.

This property is now being rented out as your spouse is with you in Country W.

You do not intend on returning to Australia permanently in the foreseeable future.

Your friends and family have made trips to Country W to visit you.

You and your spouse do not have any trips planned at this stage due to Covid.

You have made trips back to Australia since leaving to live and work, but these trips have not exceeded 183 days in any income year.

You have a joint bank account with your spouse in Australia.

You have a superannuation fund in Australia.

You are the guarantor of your spouse's home loan in Australia.

You have maintained private health cover in Australia.

You are not on the Australian electoral roll.

You have a bank account in Country X.

You lodged tax returns in Country X.

You have a Country X pension fund as per government requirements.

You have opened a bank account in Country W.

You have a pension fund in Country W.

You and your spouse are not eligible to contribute to the PSS or the CSS Commonwealth super funds.

Relevant legislative provisions

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

Income Tax Assessment Act 1936 Subsection 6(1)

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