Edited version of private advice

Authorisation Number: 1051814313795

Date of advice: 9 March 2021

Ruling

Subject: Residency

Question

Did you become a resident of Australia for income tax purposes from X November 2019?

Answer

Yes. Having considered your circumstances as a whole and the residency tests, it is accepted that you became a resident of Australia for income tax purposes from X November 2019.

Further information on residency can be found by searching quick code QC 33232 on ato.gov.au

This ruling applies for the following period:

Year ended 30 June 2020

The scheme commences on:

1 July 2019

Relevant facts and circumstances

You are a citizen of Australia.

You commenced employment with your employer. You transferred from Australia to another country and remained employed by your employer. You were a non-resident for Australian income tax purposes. You paid the Capital Gains Tax exit charge. You rented out your dwelling in Australia after leaving Australia.

You had negotiations with the Australian office of your employer, and you were offered a role in Australia as a result. The Employment Agreement was dated and included the proposed commencement date.

Your Employment Agreement stated, amongst other things, that you may be required to undertake business travel for the performance of your duties, or work at any other office and/or for another entity (either on a temporary or permanent basis).

As it turned out, shortly after signing your Australian Employment Agreement, you were requested to travel on a weekly basis to a foreign country to assist operations in that country. During this period, you remained based at your home in a foreign country, continuing to live and work with your partner, and to travel back and forth to a foreign country. Once your assignment in a foreign country was complete, you proceeded with the move to Australia.

You travelled to Australia on several occasions before finally settling in Australia for a total of fewer than 183 days.

The lease for the tenants in your Australia dwelling expired. As a result, had you returned to Australia before that date to reside permanently, you would have been required to take short-term rental accommodation or force the tenants from your dwelling.

In preparation for your ultimate return to Australia, you made two weekend-long trips to Australia. First, to take possession of your dwelling and then second, to move some personal effects from storage to the dwelling. After returning to a foreign country, you maintained your normal lifestyle with your partner.

It was not until late 2019 that you began to demonstrate the characteristics of a person wanting to stay in Australia permanently. For example, you had moved a sufficient number of personal effects from a foreign country to Australia, had utilities (such as the electricity) connected in your own name. Your place of employment had also shifted to the Australian office as your assignments in foreign countries had been completed.

You took an overseas holiday in late 2019 and returned to Australia to spend the remainder of the income year in Australia.

Relevant legislative provisions

Income Tax Assessment Act 1997 Section 6-5

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