Edited version of private advice

Authorisation Number: 1052342566103

Date of advice: 13 December 2024

Ruling

Subject: Residency

Question

Are you a resident of Australia for taxation purposes for the ruling period 1 July 20XX to 30 June 20XX.

Answer

No.

We have considered your circumstances and conclude that you are not a resident of Australia for the ruling period year ending 30 June 20XX. Therefore, as you are not considered to be a resident of Australia for the relevant ruling period, we have not considered any applicable double tax agreements. You can also be a temporary resident if you are an Australian resident or a foreign resident for tax purposes.

For further information see our webpage, Temporary residents QC 65131 on our website ato.gov.au for residence descriptions specifically 'Australian resident'.

This ruling applies for the following period

Year ending 30 June 20XX

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances

You were born in Country A in 19XX. You are a citizen of Country A and Country B.

You enter Australia on a X visa. This temporary visa allows you to visit, study and work in Australia as a Country B Citizen and it is applied for each time you enter Australia.

Your spouse is a citizen of Country A. They enter Australia on a X visa. This is a temporary visa for a person who is not a Country B citizen but is a member of a family unit of a Country B citizen.

You and your spouse have X adult children who are citizens of Countries A and B. X reside in Australia.

You and your spouse are tax residents of Country A.

Your family of origin continues to reside in Country A.

Periods of physical presence in Australia

During the financial year ended 30 June 20XX, you were onshore in Australia for X days.

During the financial year ending 30 June 20XX, you arrived in Australia on DD MM 20XX and departed on DD MM 20XX.

In the X years prior to the ruling period, you travelled to Australia for business reasons. You have not spent more than 183 days during any 12-month period. You are required to be physically present in Australia for extended periods for business reasons.

Accommodation

When in Australia you stay at an apartment in City X, Australia. This property is owned by Company X of which you are a director. Company 2 in Country A is invoiced for this accommodation.

Employment and Business Interests

Australia

Table 1: Employment and business interests in Australia

The table below summarises your employment positions and business affiliations with Country A entities over the ruling period:

Country A

Table 2: This table summarises your employment positions and business affiliations with Country A entities over the ruling period.

Other countries: Country B

Income

You do not currently derive any directors' fees or income from your role as director of the above companies.

Your main source of income is interest income on funds lent to related third parties in addition to dividend income. You also derive proceeds from the sale of shares.

Assets

Australia

You hold indirect interests in Company 2 (Australia), which is the holding company of an Australian X group.

You hold bank accounts in Australia with Bank X

When in Australia, you and your spouse make use of vehicles owned by Company 3 (Australia).

Country A

You have a permanent residence in City X in Country A through a long-term lease agreement. The property is owned by Company 10 (Country A). You indirectly hold approximately X % of the equity shares in this company through Company 12 (Country A).

The X Family Trust Country A indirectly holds the remaining X % equity interest in by Company 10 (Country A). You have an indirect interest in a Country A group of companies operating in the X industry with its head office based in City X, Country A.

You and your spouse own vehicles which are kept at the property, along with all of your furniture and household effects.

Social and sporting connections

You are a member of X (club) in City X, Country A.

You are a member of the X of City X, Country A. and the X of Country A

Australia

You are a member of the X Club in City X, Australia.

You attend X in Australia.

Assumptions

You have no intention to live in Australia permanently nor to obtain Australian Citizenship.

During the ruling period, you intend on being onshore in Australia for X days. You may exceed 183 days in Australia for year ending 30 June 20XX. You have told us this may occur if you return to Australia prior to 30 June 20XX due to X's situation.

Relevant legislative provisions

Income Tax Assessment Act 1936 subsection 6(1)

Income Tax Assessment Act 1997 section 6-5

Income Tax Assessment Act 1997 section 995-1

Reasons for decision

Detailed reasoning

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 for Year ending 30 June 20XX as follows:

•         You are not a resident of Australia according to the resides test.

•         You do not meet the domicile test because your domicile is not in Australia.

•         You do not meet the 183-day test because although you may be in Australia for 183 days or more during the 20XX-20XX income year/s 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.

•         You do not fulfill the requirements of the Commonwealth Superannuation test.

Temporary residents

You're a temporary resident as well as a foreign or Australian resident, if:

•         you have a temporary visa

•         you and your spouse are not Australian residents within the meaning of Social Security Act 1991. This means you only declare:

•         income you derived in Australia

•         some income you earn from employment or services performed overseas while you are a temporary resident of Australia.

Other foreign income and capital gains don't have to be declared. For further information see our webpage Temporary residents QC 65131 and Services Australia website for residence descriptions specifically 'Australian resident'

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