Edited version of private advice

Authorisation Number: 1052226110221

Date of advice: 26 February 2024

Ruling

Subject: Residency

Question

Did you cease to be a resident of Australia for the purposes of section 6 (1) of the Income Tax Assessment Act 1936 (ITAA 1936) from X January XXXX?

Answer

Yes

This ruling applies for the following periods:

Year ending 30 June 20XX

Year ending 30 June 20XX

Year ending 30 June 20XX

The scheme commenced on:

XX XXXX

Relevant facts and circumstances

You were born in Australia.

You are a citizen of Australia.

Your spouse and your three children are citizens of both Australia and country X

On XX XXXX, you and your family departed Australia to live in country X.

You intend to migrate and settle in country X. You have applied for permanent residence in country X.

Prior to departing Australia, you and your spouse rented a property in Australia. The lease has been terminated.

In Australia, you own a vacant land. You are considering whether to sell or to rent once the dwelling is completed.

You also own two apartments in Australia. These properties are rented out.

Your parents and siblings live in Australia.

You are a beneficiary of several Australia resident trusts.

You have an Australian driver's licence. You will surrender your Australian driver's licence once you acquire a driver's licence in country X.

You sold your car in Australia.

You shipped most of your personal belongings to country X in XX XXXX.

You are not employed in Australia.

You intend to close your bank accounts and cancel your credit cards in Australia.

You informed the Australian Electoral Commission that you were departing Australia.

In country X, you with your spouse have rented a house for two years.

Your children are enrolled in schools or pre-schools in country X.

Your spouse has entered into a construction agreement to construct and operate an arthouse cinema and restaurant in country X.

Relevant legislative provisions

Income Tax Assessment Act 1936 subsection 6(1)

Income Tax Assessment Act 1997 section 995-1

Reasons for decision

For tax purposes, you are a resident of Australia if you meet at least one of the following tests. You are not a resident of Australia if you do not meet any of the tests.

•  The resides test (otherwise known as the ordinary concepts test)

•  The domicile test

•  The 183 day test

•  The Commonwealth superannuation fund test

We have considered your circumstances, and conclude that you are not a resident of Australia from XX X 20XX, as follows:

•  You are not a resident of Australia according to the resides test from XX X XX because

-       you left Australia on XX X XX with the intention of permanently relocating to the Country X.

-       You have applied for a permanent resident visa.

-       Your spouse and children accompanied you to the Country X.

-       You have moved most of your personal effects to the Country X.

-       Your children have enrolled in schools/pre-schools in the Country X.

-       You have sold your cars in Australia and purchased cars in the Country X.

-       You intend to join social clubs in the Country X

-       You are in the process of closing your bank accounts in Australia

•  You do not meet the domicile test although your domicile of origin is in Australia and you are an Australian citizen, the Commissioner is satisfied that have established a permanent place of abode outside of Australia because your intention is to settle in the Country X, and

-       you have signed a contract to lease a rental property in the Country X to live in with your family.

-       you currently do not intend to return to Australia on a permanent basis.

-       You have approached the Australian Electoral Commission to remove you from the electoral roll.

•  You do not meet the 183-day test because even though you were in Australia for 183 days or more during the XXXX income year, being from 1 July XXXX to XX X XX. Based on your circumstances, the Commissioner is satisfied that your usual place of abode will be outside of Australia from XX X XXXX, and you currently have no intention to return to Australia on a permanent basis.

•  You do not fulfill the requirements of the Commonwealth Superannuation test and therefore do not meet this test

Conclusion

As you do not satisfy any of the four tests of residency, you are not a resident of Australia for income tax purposes from the XX X 20XX and the relevant ruling periods which follow.

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