Edited version of private advice

Authorisation Number: 1051824458301

Date of advice: 14 April 2021

Ruling

Subject: Residency

Question

Was the taxpayer a resident of Australian pursuant to subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936) in the year ended 30 June 20xx?

Answer

No

This ruling applies for the following period:

Year ended 30 June 20xx

The scheme commences on:

1 July 2019

Relevant facts and circumstances

Background

The taxpayer was born in Australia.

In 20xx, the taxpayer married their spouse. Together, the taxpayer and their spouse have a family, who were also born in Australia.

The taxpayer's birth family resides in Australia.

Move overseas

The taxpayer lived in Australia until 20xx, when they moved overseas with their spouse and family.

The overseas visas obtained by the taxpayer and their immediate family were initially valid for approximately 4 years. The visas were continually renewed for a number of years until all of them were granted indefinite residency.

The taxpayer signed a three-year lease for an Apartment, which the family moved into shortly after leaving Australia in 20xx. The taxpayer's spouse subsequently purchased the Apartment.

You state that the taxpayer and their immediate family continue to reside in the Apartment. You further state that the taxpayer intends to remain overseas for the foreseeable future while they pursue business opportunities in the region. Consequently, the taxpayer and their immediate family have no intention of moving from their Apartment whilst they live overseas.

Australian assets and associations

The taxpayer and their spouse maintained a self-managed investment fund (the Fund). As a result of the taxpayer's move overseas, the Fund's assets were transferred to an APRA regulated fund and the Fund was wound up.

You state that the taxpayer has been a company secretary and/or public officer of multiple entities in Australia. They resigned from all these positions upon their move overseas, replaced by individuals who ordinarily reside in Australia. Where they had been the sole director, a minimum of two additional Australian resident directors were appointed, which ensured compliance with the Corporations Act 2001.

The taxpayer and their spouse granted a Power of Attorney to an Australian resident, to act in relation to property transactions on behalf of the trustee of the Family Trust in relation in relation to the partnership of the A and B Partnership.

The taxpayer has a partnership with a parent. You state that this Partnership has a rental property and another asset. You further state that the taxpayer's parent administered the Partnership for several years with the assistance of a locally based accountant until recently, when the administration was taken over by ABC Pty Ltd.

The former family home in Australia is owned by the taxpayer's spouse. Upon leaving Australia, the family home was not immediately placed on the market for sale due to the unfavourable market conditions. It remains in a 'caretaker mode'.

You state that the taxpayer undertook a number of actions upon their departure from the country to end their association with Australia which included:

a)    writing to Australian professional service providers to inform them that they were moving overseas

b)    removing their details from the electoral roll

c)    resigning as Secretary and Public Officer of multiple companies

d)    cancelling their Medicare registration and medical insurance

e)    advising their medical practitioners to remove them as their patient

f)     notifying Australia Post to redirect all mail to a post office box, which is collected twice a week by a professional services firm, and

g)    advising service providers to liaise with a professional services firm, ABC Pty Ltd, on all Australian-based assets.

You also explain that the taxpayer's child's last day of school was 20xx and the school was advised that the family was moving overseas.

Additionally, the taxpayer disposed of other Australian properties when they left the country.

Overseas assets and associations

You explain that the taxpayer works as a consultant to corporations overseas.

You further explain that the taxpayer and their family live in their Apartment and have no intention in living elsewhere while they are overseas.

The taxpayer has invested in enterprises while overseas.

You state that the taxpayer has:

a)    registered as a voter overseas

b)    applied for and received confirmation of their entry into the overseas taxation system

c)    appointed a tax agent and lodges overseas tax returns

d)    applied for and recently obtained an overseas driver's licence

e)    engaged an overseas accountant and lawyer

f)     taken out private health insurance for the family, soon after their arrival overseas

g)    registered with and used the services of a local doctor, and

h)    together with their family, become a patient of an overseas based dentist.

Additionally, the taxpayer attended a gym overseas and has hired a personal trainer.

You also state that one family member attended a local school and has now completed their schooling.

Travel to Australia

Since leaving Australia, the taxpayer did not return to the country until a year later. The purpose of the first return to Australia was to attend a meeting. Subsequent to this meeting, the taxpayer returned to Australia for the second time to spend Christmas with their extended family and attend another meeting.

During the year ended 30 June 20xx, the taxpayer returned to Australia on four occasions, for the following periods:

a)    one week to celebrate a birthday

b)    one week in December to spend Christmas with their family

c)    17 days to attend the weddings of two friends, and

d)    four days to attend a family event.

In the subsequent financial years, the taxpayer's pattern of returning to Australia was broadly the same, being that they would return three to four times in each year for a period of one to three weeks at a time.

During the year ended 30 June 20xy, the taxpayer returned to Australia multiple times, staying a total of xx nights.

During the year ended 30 June 2020, the taxpayer returned to Australia on multiple occasions for a longer period. The reason why they remained in Australia for a longer period of time in his year was as a result of the COVID-19 pandemic when travel was limited.

When travelling back to Australia, the taxpayer is often accompanied by their spouse and a family member. On occasion, the taxpayer visits on their own. During some of these stays in Australia, the taxpayer would visit the former family home to check on its condition and has on occasion stayed there. When in Australia, you state that they usually stay at their sibling's or their parent's house, or at a hotel.

In the future, the taxpayer may continue to make short trips to Australia to see extended family and, in particular, their parent as their health is failing. It is not expected that these trips will be longer than one to two weeks at a time.

The taxpayer has arranged for Australian family members to visit the family overseas.

Relevant legislative provisions

Subsection 6(1) of the Income Tax Assessment Act 1936

Reasons for decision

Residency for tax purposes

Subsection 995-1(1) of the ITAA 1997 provides that a person is an 'Australian resident' if that person is a resident of Australia for the purposes of the Income Tax Assessment Act 1936 (ITAA 1936).

The definition of 'resident' is outlined in subsection 6(1) of the ITAA 1936 as follows:

(a) a person, other than a company, who resides in Australia and includes a person:

(i)      whose domicile is in Australia, unless the Commissioner is satisfied that his permanent place of abode is outside Australia;

(ii)     who has actually been in Australia, continuously or intermittently, during more than one-half of the year of income, unless the Commissioner is satisfied that his usual place of abode is outside Australia and that he does not intend to take up residence in Australia; or

(iii)   who is:

(A)         a member of the superannuation scheme established by deed under the Superannuation Act 1990; or

(B)         an eligible employee for the purposes of the Superannuation Act 1976; or

(C)         the spouse, or a child under 16, of a person covered by sub-subparagraph (A) or (B).

These statutory tests are commonly referred to as:

a)    the 'residence according to ordinary concepts' test

b)    the domicile and permanent place of abode test

c)    the 183 day test, and

d)    the Commonwealth superannuation fund test.

Consequently, only one of the above four statutory tests needs to be met to be considered an Australian resident for taxation purposes.

Residence according to ordinary concepts

The term 'resides' is not defined in either the ITAA 1936 or ITAA 1997. Taxation Ruling TR 98/17 Income Tax: residency status of individuals entering Australia (TR 98/17) provides guidance on the Commissioner's interpretation of the ordinary meaning of the word 'resides' as set out in subsection 6(1) of the ITAA 1936.

Paragraph 9 of TR 98/17 states that the residency status of a taxpayer is a question of fact and must be determined on a year to year basis, however events after the year of income may assist in determining an individual's residency status.

To determine the ordinary meaning of the word 'resides', dictionary definitions of the term can be relied on. The following definitions are provided in paragraph 14 of TR 98/17:

The Macquarie Dictionary defines 'reside' as 'to dwell permanently or for a considerable time; have one's abode for a time' and the Shorter Oxford English Dictionary defines it as 'to dwell permanently or for a considerable time, to have one's settled or usual abode, to live, in or at a particular place.'

Paragraph 18 of TR 98/17 provides that the physical presence or length of time in Australia alone is not decisive of whether an individual resides in Australia and an individual's behaviour over the time spent in Australia may reflect a degree of continuity, routine or habit that is consistent with residing in Australia. Similarly, the quality and character of a taxpayer's behaviour while in Australia assists in determining whether the individual resides here, as per paragraph 19 of TR 98/17.

Paragraph 20 of TR 98/17 provides that the following factors are useful in describing the quality and character of an individual's behaviour:

a)    intention or purpose of presence

b)    family and business/employment ties

c)    maintenance and location of assets, and

d)    social and living arrangements.

Paragraph 42 of TR 98/17 explains that when looking at the quality and character of an individual's behaviour, the way they arrange their domestic and economic affairs as part of the regular order of their lives must be considered.

Paragraph 47 states that an individual's intention, purpose or reason for being in Australia assists in determining whether an individual resides here. Paragraph 48 of TR 98/17 provides that a settled purpose may support an intention to reside in Australia.

The meaning of 'family and business/employment ties' is explained in paragraphs 52 to 56 of TR 98/17. Paragraph 52 of TR 98/17 states that the presence of an individual's family is a factor that may indicate that individuals are residing in Australia.

When considering the maintenance and location of assets, paragraph 57 of TR 98/17 provides that occupying a dwelling in Australia that the individual owns or is purchasing, suggests establishment of a home in Australia. The presence of other assets in Australia, such as motor vehicles and bank accounts also add further weight to the individual having established behaviour consistent with residing here.

Paragraph 59 of TR 98/17 states that social and living arrangements can also be considered in determining whether an individual resides in Australia for tax purposes. This factor involves the consideration of the way individuals interact with their surroundings during their stay in Australia.

'Ordinarily resides' case law

The phrase 'residence according to ordinary concepts' has been considered in numerous court cases.

In Peel v. The Commissioners of Inland Revenue[1] (Peel) the taxpayer was considered a resident of the United Kingdom (UK) as:

a)    he was born and educated in the UK, and lived there until he was seventeen years of age

b)    although his business interests were in Egypt and he and his wife lived there, in 1920, he bought, furnished and kept ready for occupation, a house in Scotland that he and his family occupied at various times during the year

c)    this house was occupied by his children during their education in the UK, his wife during the children's holidays and by himself when he visited the UK

d)    the house was purchased for the taxpayer to live in when he ultimately retired

e)    the taxpayer was a member of clubs in London and Edinburgh and had family and friends in the UK, and

f)     during the income year in question the taxpayer was in the UK for a total of 166 days.[2]

The case of Levene v The Commissioners of Inland Revenue[3] (Levene) also provides judicial interpretation of the terms 'resident' and 'ordinarily resident'. In Levene, the taxpayer was a British subject who decided to live overseas. He sold his furniture and surrendered the lease on his house in 1918, and from March 1918 until December 1919, he lived in the UK in various hotels. The taxpayer argued that since December 1919, he was not a resident in the UK. At this time, he and his wife went overseas and did not return until 10 July 1920. From then onwards, the taxpayer stayed in France and later Monaco, spending an average of 20 weeks a year in the UK between 1920 and 1924. His visits back to the UK were for the purposes of obtaining medical advice, visiting family, religious observances and dealing with his taxation affairs.

Between March 1918 and January 1925, the taxpayer had no fixed place of abode, but stayed in hotels and since giving up his house in 1918, had no intention of taking up a house or flat in the UK. The taxpayer had bank accounts in London, Paris and Monte Carlo, with the London bank account only being operated to a small extent since giving up residence in 1918.

Hanworth J at page 496 of the judgment state that residence must indicate something more than mere presence. Sargant LJ at page 499 stated that because the appellant and his wife made their abode and lived in the UK for four to five months each year, and this was part of the regular system of their life, they were residents of the UK, 'not merely in the sense of being present here but in the fuller sense of making their home here.'

As per Viscount Cave LC at page 505, a taxpayer 'is not the less resident there because from time to time he leaves it for the purpose of business or pleasure.'

Lord Hanworth also found in the case at page 497 that:

I suggest as a characteristic factor for consideration, even if it does not fulfil the nature of a test, to ascertain if the suggested alternative place of residence is one which the subject seeks willingly and repeatedly in order to obtain rest or refreshment or recreation suitable to his choice: where for a time he is embedded in the enjoyment of what he desired to attain, and found in the abode of his own option.

Another factor may be found-and an important one-if he returns to and seeks his own fatherland in order to enjoy a sojourn in proximity to his relations and friends.

One of the principles that can be taken from the British cases of Reid, Levene and Peel and their consideration of the word 'resides' is that by itself, the length of time an individual is physically present in Australia is not determinative in deciding whether they are a resident for tax purposes. However, an individual's behaviour during their time spent in Australia may reflect a degree of continuity, routine or habit that is consistent with them being an Australian resident.

Latham CJ stated, with reference to the judgement in Levene, in Miller v FCT[4] that:

... the word "reside" is a familiar English word and is defined in the Oxford English Dictionary as meaning "to dwell permanently or for a considerable time, to have one's settled or usual abode, to live in or at a particular place." No doubt this definition must for the present purposes be taken subject to any modification which may result from the terms of the Income Tax Act and Schedules; but, subject to that observation, it may be accepted as an accurate indication of the meaning of the word "reside". In most cases there is no difficulty in determining where a man has his settled or usual abode, and if that is ascertained he is not the less resident there because from time to time he leaves if for the purpose of business or pleasure.

Lysaght v. IR Commrs[5] (Lysaght) provides authority for the conclusion that where a person spends limited time in a country they may still reside in that country if the visits are part of the regular order and mode of their life.

Application to your circumstances

Resides according to ordinary concepts

As explained in detail above, as well as in paragraphs 18 to 20 of TR 98/17, whether a taxpayer satisfies the 'resides according to ordinary concepts test', consideration of the taxpayer's behaviour during the particular year and whether this behaviour reflects a degree of continuity, routine or habit is consistent with residing in Australia.

In 20xx, the taxpayer and their family departed Australia. Upon their departure, the taxpayer ceased a number of connections with Australia and commenced ties overseas, where they made significant investments and worked as a consultant. Together with their spouse, they wound up a self-managed superannuation fund and its assets were transferred to an APRA regulated fund. They also resigned from their position as company secretary and/or public officer of multiple entities (as listed above).

They also undertook the following actions upon arrival overseas which demonstrate their intention to cease their association with Australia:

a)    removing their details from the electoral roll

b)    cancelling their Medicare registration and medical insurance

c)    informing professional services providers that they were moving overseas

d)    advising medical practitioners to remove them as a patient

e)    notifying Australia Post to redirect all mail to a post office box, which is collected twice a week by a professional services firm

f)     resigning as Secretary and Public Officer of multiple companies, and

g)    advising service providers to liaise with a professional services firm, ABC Pty Ltd, on all Australian-based assets.

With regards to the taxpayer's involvement in the partnership operated with their parent in Australia, the parent managed the administration of the Partnership until recently, when ABC Pty Ltd was appointed to undertake this role.

Similarly, the taxpayer and spouse granted a Power of Attorney to an Australia resident individual, to act in relation to property transactions on behalf of the A and B Partnership.

A child of the taxpayer's last day of school in Australia was on 20xx. The child then recommenced their schooling overseas.

Although the former family home, which is owned by the taxpayer's spouse, has not been sold, there is no intention to return there to reside and local real estate agents have been advised that it will be sold.

In addition, the taxpayer disposed of other Australian properties when they departed the country. The residential properties which continue to be held by the taxpayer's spouse, or associated entities, are mostly tenanted with long term leases and are therefore not readily available for use by the family.

You further explain that the family live in their Apartment and have no intention in living elsewhere while they are overseas.

Together with the abovementioned actions limiting the connection with Australia upon departure, the taxpayer commenced and strengthened their ties with the new country. Specifically, they leased, and subsequently bought the Apartment in which the family resided since leaving Australia.

The taxpayer has made investments, opened bank accounts, including credit card facilities, since arriving overseas.

Further, the taxpayer has established links to overseas through their:

a)    registration as a voter

b)    entry into the overseas taxation system

c)    appointment of a tax agent who lodges the overseas tax returns

d)    obtaining of an overseas driver's licence

e)    engagement of an overseas based accountant and lawyer

f)     obtaining private health insurance for the family commencing shortly after arriving overseas

g)    registration with and use of the services of a locally based doctor, and

h)    using a locally based dentist.

The taxpayer attends an overseas gym and has hired a personal trainer.

The taxpayer's visits back to Australia are infrequent, generally for personal reasons but occasionally for business. In years prior to the year ended 30 June 20xx, the taxpayer would generally return to Australia three to four times a year for a period of one to three weeks at a time. During some of the stays in Australia, they would visit the former family home to check on its condition and on occasion stay there. When in Australia, you state that they usually stay at a sibling's or their parent's house or in a hotel.

Although the total period of time the taxpayer spent in Australia during the year ended 30 June 2020 increased markedly from previous years, the increased period was a result of the COVID-19 pandemic which limited travel between March to June 20xx.

The taxpayer also anticipates that they may continue to make short trips to Australia to see extended family. They consider that this is expected due to the failing health of a parent. As per previous years prior to the COVID-19 pandemic, they expect that these trips will not be longer than one to two weeks at a time.

Consequently, the taxpayer's behaviour demonstrates that they ceased their connection with Australia and do not have a habit or routine that is consistent with residing in Australia. They maintain a family home overseas and have working arrangements with overseas entities. Similarly, their personal effects are located outside Australia in the Apartment. Upon departure from Australia, they notified the relevant Australian based authorities that the family was leaving the country and similarly contacted the relevant overseas based authorities upon arrival. As such, the taxpayer has not satisfied the 'resides according to ordinary concepts' test.

The domicile and permanent place of abode test

Where a taxpayer does not ordinarily reside in Australia, subsection 6(1) of the ITAA 1936 provides that they may still be considered a resident for tax purposes if they have a domicile in Australia, unless the taxpayer shows that they have a permanent place of abode outside Australia. This test generally applies where an Australian resident goes to work in an overseas country for an extended period of time.

The meaning of domicile is explained in paragraphs 8 to 10 of Taxation Ruling IT 2650 Income tax: residency - permanent place of abode outside Australia (IT 2650). Paragraph 8 of IT 2650 explains that 'domicile' is a legal concept which is determined according to the Domicile Act 1982 and according to the common law rules that the courts have developed. The primarily common law rule is explained as follows in paragraph 8 of IT 2650:

a person acquires at birth a domicile of origin, being the country of his or her father's permanent home. This rule is subject to some exceptions. For example, a child takes the domicile of his or her mother if the father is deceased or his identity is unknown. A person retains the domicile of origin unless and until he or she acquires a domicile of choice in another country, or until he or she acquires another domicile by operation of law.

The case of Udny v Udny [1869] LR 1 Sc & Div 441 provides some guidance on whether a domicile of choice has been established. Lord Westbury at page 458 explains that a domicile of choice is a conclusion which follows 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.

Lord Westbury also stated that:

There must be a residence freely chosen, and not prescribed or dictated by any external necessity such as the duties of office...and it must be residence fixed not for a limited period or a 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...

This common law test of domicile of choice is outlined in section 10 of the Domicile Act 1982 which provides that:

The intention that a person must have in order to acquire a domicile of choice in a country is the intention to make his home indefinitely in that country.

Paragraph 10 of IT 2650 states that:

Thus, a person with an Australian domicile but living outside Australia will retain that domicile if he or she intends to return to Australia on a clearly foreseen and reasonably anticipated contingency e.g., the end of his or her employment. On the other hand, if that person has in mind only a vague possibility of returning to Australia, such as making a fortune (a modern example might be winning a football pool) or some sentiment about dying in the land of his or her forebears, such a state of mind is consistent with the intention required by law to acquire a domicile of choice in the foreign country.

Having established that a taxpayer has their domicile in Australia, in order to be a resident under the 'domicile and permanent place of abode test', the Commissioner must consider the second limb of the test, namely, whether the taxpayer's permanent place of abode is in Australia.

IT 2650 discusses when a permanent place of abode outside Australia results in the taxpayer not being a resident for tax purposes in Australia.

The term 'place of abode' is explained at paragraph 12 of IT 2650 as a person's dwelling place or the physical surroundings in which a person lives.

To define 'permanent place of abode', paragraph 22 of IT 2650 provides that:

The word "permanent" in subparagraph (a)(i) of the definition of "resident" does not have the meaning of everlasting or forever but is used in the sense of being contrasted with temporary or transitory.

Paragraph 23 of IT 2650 goes on further to state some of the factors which the Commissioner will consider in determining where a taxpayer's permanent place of abode is. These are:

(a)       the intended and actual length of the taxpayer's stay in the overseas country;

(b)       whether the taxpayer intended to stay in the overseas country only temporarily and then to move on to another country or to return to Australia at some definite point in time;

(c)       whether the taxpayer has established a home (in the sense of dwelling place; a house or other shelter that is the fixed residence of a person, a family, or a household), outside Australia;

(d)       whether any residence or place of abode exists in Australia or has been abandoned because of the overseas absence;

(e)       the duration and continuity of the taxpayer's presence in the overseas country; and

(f)        the durability of association that the person has with a particular place in Australia, i.e. maintaining bank accounts in Australia, informing government departments such as the Department of Social Security that he or she is leaving permanently and that family allowance payments should be stopped, place of education of the taxpayer's children, family ties and so on.

The weight given to each factor depends on the individual circumstances of each case as provided by paragraph 24 of IT 2650. It is highlighted that the fact that the taxpayer knows that they will return to Australia at a definite point in time does not mean that they do not have a permanent place of abode outside Australia.

Case law can also be relied on to define these terms. In R v Hammond[6] at page 1480 'place of abode' is defined as 'a man's residence, where he lives with his family and sleeps at night, is always his place of abode in the full sense of that expression.'

The case of Federal Commissioner of Taxation v. Applegate[7](Applegate) provides an indication of when a taxpayer will have a permanent place of abode outside Australia.

In Applegate, the taxpayer was employed as a solicitor in a Sydney firm and was sent to Vila to establish an office and act as a manager. The taxpayer accepted the offer and surrendered the lease of his flat leaving Australia on 8 November 1971. Once arriving in Vila, the taxpayer and his wife resided in a hotel for two weeks and then moved into a house which was leased for a period of 12 months with an option for a further lease for an additional 12 months. The taxpayer was admitted to Vila on a 12 month residency permit which was renewed on expiry for a further period of 2 years. It was accepted by both the taxpayer and his employer that the taxpayer would eventually return to Australia, at an unspecified date.

The taxpayer's wife returned to Australia for the birth of a child in December 1971 and after the birth of the child, the taxpayer travelled to Australia to accompany his wife and child on their return to Vila. In May 1973, the taxpayer became ill and dissatisfied with the medical treatment available in Vila, returned to Australia. The taxpayer returned to Australia permanently in September 1973.

In the case, the federal court accepted the taxpayer's arguments that he was a non-resident for tax purposes. The court adopted the view that 'permanent' meant 'non-temporary' rather than 'forever'.

Franki J at page 901 stated that 'the phrase 'permanent place of abode outside Australia' is to be read as something less than a permanent place of abode in which the taxpayer intends to live for the rest of his life. Northrop J at page 906 agreed with this sentiment stating:

In this context it is unreal to consider whether a taxpayer has formed the intention to live or reside or to have a place of abode outside of Australia indefinitely, without any definite intention of ever returning to Australia in the foreseeable future.

The relevant test is expressed by Franki J at page 902:

...that there be a permanent place of abode outside Australia and that the enquiry as to whether there is or not is an objective one, notwithstanding the fact that the intention of the taxpayer in relation to the length of time that he will reside in a place outside Australia is a relevant factor to be taken into account.

Northrop J provided at page 906 that the phrase 'place of abode':

may have many meanings, it can refer to the building or place where a person sleeps and it can refer to the building or place where he is usually found.

At page 907, Northrop J stated that it is also important to consider whether a taxpayer has abandoned any residence or place of abode in Australia, and:

If in that year a taxpayer does not reside in Australia...but has formed the intention to, and in fact has, resided outside Australia, then truly it can be said that his permanent place of abode is outside Australia during that year of income.

Fisher J at page 910 again reiterated that the permanent place of abode need not be forever:

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 domicile.

'Permanent place of abode', according to Fisher J at pages 910-911 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.

Application to the taxpayer's circumstances

In order to determine whether the taxpayer meets the domicile and permanent place of abode test, it is necessary to consider not only their physical presence or length of time in Australia, but also the quality and character of their behaviour in the years leading up to and including the year ended 30 June 20xx.

The taxpayer was born in Australia and continuously resided here until 20xx. On that date, the taxpayer and family departed overseas.

The taxpayer initially moved on a temporary visa. This visa was repeatedly renewed for a number of years, when the family obtained an indefinite residency.

Initially, the taxpayer leased an Apartment for a multiple year period. Subsequently, the Apartment was purchased. The family have their personal belongings (such as clothing and other personal effects) and furniture in the Apartment and have continued to reside there since their arrival.

Consequently, the taxpayer has established a home outside of Australia with their immediate family.

Additionally, the former family home has been abandoned by the family upon their departure from Australia. Although, the taxpayer's spouse continues to own the former family home in Australia, and has undertaken a series of renovations to the property, the taxpayer states that there is no intention to return to it (nor any other properties owned by the taxpayer's associated entities, such as those held by the family trust).

Although the taxpayer may ultimately return to Australia at some point in the future, at this stage there are no definite plans to return to Australia (or relocate to any other country). Accordingly, the taxpayer has abandoned their place of abode in Australia.

In conclusion, and consistent with the findings in Applegate, the taxpayer did not have a permanent place of abode in Australia in the year ended 30 June 20xx.

The 183 day test

In order to satisfy this test for residency, a taxpayer is required to be physically present in Australia for more than half an income year, being 183 days.

Application to your circumstances

During the year ended 30 June 20xx, the taxpayer returned to Australia multiple times for a longer period. You state that the COVID-19 pandemic and travel ban resulted in them staying longer during the last visit.

Despite having stayed in Australia for a longer period of time than previous years, the taxpayer still failed to stay in the country for a period of 183 days or longer. Consequently, the taxpayer did not satisfy the '183 day' test pursuant to subparagraph 6(1)(a)(ii) of the ITAA 1936.

The Commonwealth Superannuation Test

The third statutory test for residency states that a resident is a person who is a member of the Commonwealth Superannuation Scheme, established under the Superannuation Act 1976 or the Public Sector Superannuation Scheme, established under the Superannuation Act 1990.

Application to your circumstances

The taxpayer is not an employee of the Commonwealth and state that this test is not relevant to your circumstances. You have not satisfied the Commonwealth Superannuation Test in subparagraph 6(1)(a)(iii) of the ITAA 1936.

Conclusion

As explained in the preceding paragraphs, the taxpayer does not satisfy any of the statutory tests in subsection 6(1) of the ITAA 1936 and therefore is not an Australian resident for tax purposes in the year ended 30 June 20xx.

[1] (1927) 13 TC

[2] See also: Lloyd v Sulley[2] (1884) 2 TC 37, In re Young (1875) 1 TC 57, Rogers v IR Commrs (1879) 1 TC 225, and Thomson v Bensted (1918) 7 TC 137 for cases in which the taxpayer had a residence available in the United Kingdom and the taxpayer was held to be resident there.

[3] (1928) AC 217; (1927-28) 13 TC 486

[4] (1946) 73 CLR 93 at 99.

[5] (1928) 13 TC 511

[6] (1852) 177 E.R. 1477

[7] 79 ATC 4307; (1979) 9 ATR 899

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