Edited version of private advice

Authorisation Number: 1052129865425

Date of advice: 19 June 2023

Ruling

Subject: Resident of Australia for taxation purposes

Question 1:

Am I a resident of Australia for taxation purposes from the date you arrived in COUNTRY X (Date 1) to the date you departed COUNTRY X (Date 2)?

Answer:

No.

Question 2:

Am I a resident of Australia for taxation purposed from the date you arrived in Australia (Date 3) to the day prior to your departure to travel to COUNTRY Z (Date 4)?

Answer:

Yes.

Question 3:

Am I a resident of Australia for taxation purposes from the date you arrived in COUNTRY Z (Date 5) to the end of the ruling period (Date 6)?

Answer:

No.

This ruling applies for the following periods:

Income year ended 30 June 20XX

Income year ending 30 June 20XX

The scheme commenced on:

1 July 20XX.

Relevant facts and circumstances

You were born in Australia and are a citizen of Australia.

Your spouse (Person A) accepted an employment offer to work in COUNTRY X on for a specified period, with the intention to continue to work for the employer for an indefinite period of time.

You made the decision to make your home indefinitely outside of Australia when your spouse accepted their employment offer and you did not have any intention to return to Australia apart from short trips to visit family.

Your spouse departed Australia to travel to COUNTRY X to commence their employment.

You remained in Australia while you were waiting for your visa to travel to COUNTRY X.

You travelled to COUNTRY X arriving there on Date 1.

Prior to leaving for COUNTRY X you and your spouse had resided at a property solely owned by you (the Property) where you had lived for some time. You resided there until you left for COUNTRY X having cleared out all of your personal items, donating some items, with others being stored at your parents property.

Some renovations were undertaken on the Unit but were not completed until a later date with the Unit being rented out some months after your departure to COUNTRY X, with the rental being managed by a real estate agent.

You held the following in Australia after you left for COUNTRY X:

•         The Unit, which has been rented and will continue to be rented until the end of the ruling period. There is no mortgage on this property.

•         Joint ownership with Person A in a property (Investment Property) which is rented out, with the mortgage having been paid out

•         Units held in a managed investment fund; and

•         Joint bank account held with Person A maintained to receive rental income, and for loan redraw facility for emergency funds.

Person A advised the Australian bank where you held a joint bank account that you were a non-resident.

You suspended your private health insurance.

You contacted the Australian Electoral Commission that you were residing overseas indefinitely.

You obtained worldwide health insurance coverage.

You endeavoured to have all mail sent via email while you were in COUNTRY X, with some mail continuing to be sent your parents address or your accountant/financial advisor.

Person A was provided with accommodation in COUNTRY X by their employer during their employment, where you stayed for the duration of your time in COUNTRY X.

You did not maintain any social or sporting connections, or professional membership/s in Australia after you departed for COUNTRY X.

You did not work in COUNTRY X due to visa restrictions and during your period in COUNTRY X you went to a gym, thermal spa, took language lessons, and joined with other expat people for social activities.

You had an international drivers' licence but did not have any assets in COUNTRY X.

You did not have any plans or intentions to return to Australia for the duration of Person A's employment after you had departed, only intending to return to Australia to visit your parents and parents-in-law as required after the COVID restrictions were lifted, to attend family events, with travel once or twice per year for two to four weeks each time.

Person A was offered a more senior position with Company A located in COUNTRY Z, which they accepted.

You and Person A departed COUNTRY X on Date 2, arriving in Australia on Date 3 for the purpose of obtaining visas to enable Person A to live and work in COUNTRY Z, and for you to be able to join them there.

While in Australia you stayed with your parent while waiting for the visas to be granted. The items you had stored at your parent's property were moved into storage.

You were issued a visa to enable you to travel to COUNTRY Z to coincide with Person A's employment contract with Company A in COUNTRY Z.

Person A departed for COUNTRY Z to commence their employment while you remained in Australia for an additional period of time visiting with friends until Date 4, before departing Australia the next day to travel to COUNTRY Z, being Date 5.

You and Person A reside in accommodation provided by Company A which is fully furnished.

You have acquired some personal and household items while in COUNTRY Z.

You attempt to have all mail sent via email while you are in COUNTRY Z, receiving some personal mail at your address in COUNTRY Z occasionally, such as birthday and Christmas cards.

You are not working in COUNTRY Z due to visa restrictions and do not have any employment or business ties in Australia.

While in COUNTRY X you participate in the language classes, play golf and volleyball, take tennis lessons and participate in activities with several expatriates' groups.

You did not have any social and/or sporting connections, or professional membership/s in Australia during your time in COUNTRY X.

You contacted the managed investment fund where you have investments of the change of your residency status.

You do not have any plans to return to Australia, planning to visit Australia once or twice per year to visit your parents and parents-in-law for short visits for periods between two to three weeks.

You returned to Australia for a short period due to an unexpected death of a family member before returning to COUNTRY Z. You also returned to Australia for a family reunion, staying a short period before returning to COUNTRY Z.

The final stage of the Unit renovations has now been quoted and agreed, with an expectation that they will be undertaken shortly after the end of the ruling period.

You have given notice to the tenant of your intention to sell the Unit once the renovations are complete, which is expected to occur some weeks after they are started.

You and Person A anticipate moving into a larger unit you will continue to reside during the period you are in COUNTRY Z.

You have applied to have your visa extended for a further twelve-month period.

It is your intention to remain in COUNTRY Z until the end of Person A's current project ending after the end of the ruling period, and then to follow them to their next project in COUNTRY Z or in some other country and have not set plans to return to Australia.

Neither you nor Person A were Commonwealth Government of Australia employees for superannuation purposes and are not eligible to contribute to the PSS or the CSS Commonwealth Super funds.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 6-5

Income Tax Assessment Act 1997 section 995-1

Income Tax Assessment Act 1936 subsection 6(1)

Reasons for decision

Summary

You were a resident of Australia for taxation purposes from the date you arrived in Australia, Date 3, until the day prior to your departure to COUNTRY Z, Date 4, as you have met the resides and domicile tests. Your domicile remained in Australia, and you did not have a permanent place of abode outside of Australia. You were also physically present in Australia and not residing in any other country during this period.

Detailed reasoning

Overview of the law

Section 995-1 of the Income tax Assessment Act 1997 (ITAA 1997) defines an Australian resident for tax purposes as a person who is a resident of Australia for the purposes of the Income Tax Assessment Act 1936 (ITAA 1936).

The terms resident and resident of Australia, as applied to an individual, are defined in subsection 6(1) of the ITAA 1936.

The definition offers four tests to ascertain whether each individual taxpayer is a resident of Australia for income tax purposes. These tests are:

•         the resides test,

•         the domicile test,

•         the 183 day test, and

•         the superannuation test.

The resides test is the primary test for deciding the residency status of an individual. This test considers whether an individual resides in Australia according to the ordinary meaning of the word 'resides'.

Where an individual does not reside in Australia according to ordinary concepts, they will still be an Australian resident if they meet the conditions of one of the other tests (the domicile test, 183-day test and Commonwealth superannuation fund test).

Our interpretation of the law in respect of residency is set out in Taxation Ruling TR 2023/1 Income tax: residency tests for individuals.

We have considered the statutory tests listed above in relation to your situation as follows:

The resides test

The ordinary meaning of the word 'reside' has been expressed 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': See Commissioner of Taxation v Miller (1946) 73 CLR 93 at 99 per Latham CJ, citing Viscount Cave LC in Levene v Inland Revenue Commissioners [1928] AC 217 at 222, citing the Oxford English Dictionary. Likewise, the Macquarie Dictionary defines 'reside' as 'to dwell permanently or for a considerable time; have one's abode for a time'.

The observations contained in the case of Hafza v Director-General of Social Security (1985) 6 FCR 444 are also important:

Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place - even involuntarily: see Commissioners of Inland Revenue v Lysaght [1928] AC 234 at 248 ; and Keil v Keil [1947] VLR 383 - a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place - Levene v Inland Revenue Commissioners [1928]AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at 149 - together with an intention to return to that place and an attitude that that place remains " home " : see Norman v Norman (No 3) (1969) 16 FLR 231 at 235 ... [W]here the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as " home " , a change of intention may be decisive of the question whether residence in a particular place has been maintained.

The Commissioner considers the following factors in relation to whether a taxpayer is a resident under the 'resides' test:

•         period of physical presence in Australia

•         intention or purpose of presence

•         behaviour while in Australia

•         family and business/employment ties

•         maintenance and location of assets

•         social and living arrangements.

Because the ordinary concepts test is whether an individual resides in Australia, the factors focus on the individual's connection to Australia. Having a connection with another country, or being a resident of another country, does not diminish any connection to Australia: Logan J in Pike v Commissioner of Taxation [2019] FCA 2185 at 57 reminds us that 'it is no part of the ordinary meaning of reside in the 1936 Act that there be a "principal" or even "usual" place of residence. ... It is important that ... "resident" not be construed and applied as if there were such adjectival qualifications.' For this reason, the test is not about dominance or exclusivity.

Application to your situation

Prior to departing for COUNTRY X, you had resided in Australia. You arrived in COUNTRY X on Date 1 where you stayed until Date 2 when you returned to Australia, arriving on Date 3. You stayed in Australia until Date 4 before departing for COUNTRY Z, arriving on Date 5.

We have considered the resides test in relation to your situation as follows:

•         Period in COUNTRY X - arriving on Date 1 and departing on Date 2

During this period:

-       You travelled to COUNTRY X to join Person A for the length of their employment there, obtaining a visa to enable you to stay for the duration of their employment

-       You lived in accommodation provided by Person A's employer for the duration of their employment, staying at the same address while you were in COUNTRY X

-       Your intention was to remain overseas for five to ten years with Person A, travelling to Australia for short periods to visit extended family in Australia

-       You jointly owned an investment property with Person A that was rented out while you were in COUNTRY X, your Unit that was rented, a bank account and units held in a managed investment fund, and several bank accounts in Australia. You did not have any assets in COUNTRY X

-       You did not maintain any social or sporting connections in Australia, but had gone to a gym, thermal spa, taken language lessons and joined other expat people for social activities in COUNTRY X.

Your behaviour during the period you were in COUNTRY X supports and is consistent with your intention to live there for the duration of Person A's employment, which would potentially have been extended as they had been offered a promotion by their employer in COUNTRY X.

Given your limited connections to Australia and physical presence overseas in COUNTRY X, you are viewed as being a non-resident for tax purposes under the resides test from Date 1 to Date 2.

•         Period in Australia - date of arrival on Date 3 to date prior to departure to COUNTRY Z, being Date 4

During this period:

-       You were physically in Australia for the purpose of obtaining a visa to allow you to travel to COUNTRY Z to join Person A and live there during the period of their employment

-       You stayed with your parent and visited friends

-       Once you had obtained your visa you travelled to COUNTRY Z to join Person A; and

-       You continued to hold the same assets in Australia.

While we accept that your intention was not to remain in Australia but had been for the purpose of obtaining the relevant visa to enable you to travel to COUNTRY Z to join Person A, you did not have any strong ties to any other country and were physically in Australia during this period.

It cannot be viewed that you resided in any other country during this period given that you had abandoned your accommodation and lifestyle in COUNTRY X and had not established another abode outside of Australia during this period.

Nothing has been provided to support that you had any strong ties to any overseas country/countries during the period you were in Australia. Therefore, you were a resident of Australia under the resides test during this period.

•         Period in COUNTRY Z - arriving on Date 5 and continuing to stay there until the end of the ruing period on Date 6

We have taken the following into consideration during the period Date 5 to Date 6 because:

-       You obtained a visa to enable you to live the duration of Person A's employment.

-       Accommodation was provided by Person A's employer during the period of their employment where you have stayed while in COUNTRY Z

-       You have household effects and personal items in COUNTRY Z and continue to hold the same assets in Australia

-       You do not have any social or sporting connections in Australia. You undertake language and tennis classes, play tennis and volleyball and join in several expatriate groups in COUNTRY Z; and

-       You do not intend returning to Australia to live within the next five to ten years while Person A is working overseas, with the expectation that you will travel to Australia to visit for short periods once or twice each year.

Your behaviour since your arrival in COUNTRY Z supports and is consistent with your intention to live there for the period of Person A's employment, and you have applied to have your visa extended for a further twelve months.

You and Person A have established your life in COUNTRY Z after your arrival until the present time. While you have some assets in Australia, since your arrival you have displayed behaviour consistent with someone residing in COUNTRY Z.

You were physically in COUNTRY Z and had limited connection with Australia. Therefore, you are viewed as being a non-resident for tax purposes from Date 5 to Date 6 under the resides test.

Domicile test

Under the domicile test, you are a resident of Australia if your domicile is in Australia unless the Commissioner is satisfied that your permanent place of abode is outside Australia.

Domicile

Whether your domicile is in Australia is determined by the Domicile Act 1982 and the common law rules on domicile.

Your domicile is your domicile of origin (usually the domicile of your father at the time of your birth) unless you have a domicile of dependence or have acquired a domicile of choice elsewhere. To acquire a domicile of choice of a particular country you must be lawfully present there and hold the positive intention to make that country your home indefinitely. Your domicile continues until you acquire a different domicile. Whether your domicile has changed depends on an objective consideration of all relevant facts.

Permanent place of abode

If you have an Australian domicile, you are an Australian resident unless the Commissioner is satisfied that your permanent place of abode is outside Australia. This is a question of fact to be determined in light of all the facts and circumstances of each case.

'Permanent' does not mean everlasting or forever, but it is to be distinguished from temporary or transitory.

The phrase 'permanent place of abode' calls for a consideration of the physical surroundings in which you live, extending to a town or country. It does not extend to more than one country, or a region of the world.

The Full Federal Court in Harding v Commissioner of Taxation [2019] FCA 29 held at paragraphs 36 and 40 that key considerations in determining whether a taxpayer has their permanent place of abode outside Australia are:

•         whether the taxpayer has definitely abandoned, in a permanent way, living in Australia

•         whether the taxpayer is living in a town, city, region or country in a permanent way.

The Commissioner considers the following factors relevant to whether a taxpayer's permanent place of abode is outside Australia:

(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 assets 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.

As with the factors under the resides test, no one single factor is decisive, and the weight given to each factor depends on the individual circumstances.

Application to your situation

In your case, you were born in Australia, are an Australian citizen and your domicile of origin is Australia.

You had not abandoned your domicile in Australia, nor had you actively applied for, or been issued, a visa that would allow you to remain in either COUNTRY X or COUNTRY Z indefinitely. You obtained visas that enabled you to stay in both countries so that you could join Person A while they were undertaking their employment in each country but had not chosen to migrate to either country.

Therefore, you would be viewed as being a resident of Australia under the domicile test during the ruling period unless the Commissioner is satisfied you had established a permanent place of abode outside of Australia as considered below:

•         Period in COUNTRY X - arriving on Date 1 and departing on Date 2

For this period the Commissioner is satisfied that your permanent place of abode had changed and was in COUNTRY X during this period because:

-       You and Person A resided in accommodation provided by their employer for the duration of your time there, establishing an abode there and relocating your lives there

-       You did not have an abode available to you in Australia as the Unit and the jointly owned investment property were rented out and you did not have access to them while they were rented; and

-       Your intention had been to remain overseas for up to ten years while Person A was employed overseas.

•         Period in Australia - date of arrival on Date 3 to date prior to departure to COUNTRY Z, being Date 4

You were in Australia during this period, and nothing has been provided to support that your permanent place of abode was outside of Australia as you had left the accommodation in COUNTRY X and had not established any other abode overseas.

Therefore, the Commissioner does not accept that your permanent place of abode during this period was overseas, and as your domicile is Australia you are viewed as being a resident during this period under the domicile test.

•         Period in COUNTRY Z - arriving on Date 5 and continuing to stay there until the end of the ruing period on Date 6

The Commissioner is satisfied that your permanent place of abode was in COUNTRY Z during this period because:

•         You and Person A resided in accommodation provided by their employer since your arrival in COUNTRY Z, establishing an abode there and relocating your lives there

•         You did not have an abode available to you in Australia as the property you jointly owned with Person A and the Unit were rented out and you did not have access to them while they were rented

•         You have integrated yourself socially in COUNTRY Z; and

•         Your intention had been to remain overseas for up to ten years while Person A is employed overseas, and you have applied to have your COUNTRY Z visa extended.

The 183-day test

Under the 183-day test, if you are present in Australia for 183 days or more during the income year, you will be a resident, unless the Commissioner is satisfied that both:

•         your usual place of abode is outside Australia, and

•         you do not intend to take up residence in Australia.

Application to your situation

You were not in Australia for 183 days or more during the income years included in the ruling period. Therefore, you are not a resident of Australia under this test.

The Commonwealth superannuation test

An individual is a resident of Australia if they are either 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 they are the spouse, or the child under 16, of such a person.

Application to your circumstances

You do not fulfil the requirements of the Commonwealth Superannuation test and are therefore not a resident under this test.

Conclusion

We have determined your residency status for taxation purposes during the ruling period as follows:

•         Non-resident for the period you were in COUNTRY X, being from Date 1 when you arrived until Date 2 when you departed, as you did not meet any of the residency tests.

•         Resident for the interim period in Australia between your time in COUNTRY X and COUNTRY Z, being Date 3 when you arrived in Australia until the day before you departed to COUNTRY Z, being Date 4, as you met the resides test and the domicile test for that period; and

•         Non-resident for the period you were in COUNTRY Z during the ruling period, being from your arrival on Date 5 until the end of the ruling period on Date 6, as you did not meet any of the residency tests.

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