Edited version of private advice

Authorisation Number: 1052353030510

Date of advice: 21 January 2025

Ruling

Subject: Residency of Australia for taxation purposes

Question 1

Are you a resident of Australia for taxation purposes?

Answer 1

No.

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 Z.

You are a citizen of Country Z.

You have been an employee of the Country Z government for a number of years.

Several years ago, you travelled to Australia to undertake study.

You completed the course of study a few years later.

Your family accompanied you to Australia.

You returned to Country Z following the completion of your studies.

Due to your children commencing their schooling in Australia, and the difficulties with travel between Australia and Country Z, you decided to return to Australia until you gained your Australian Citizenship.

While residing in Australia, you acquired an ownership interest in a property (Property A).

You also acquired an ownership interest in another property (Property B).

Several years later, you acquired an ownership interest in a property (Property C).

Property C is the family home for your spouse and children.

Prior to acquiring the ownership interest in Property C, you became an Australian citizen.

After obtaining Australian citizenship, you departed from Australia and entered Country Z using your Country Z passport.

Your family did not return to Country Z with you.

Your intention was to take up domicile in Country Z and continue to work in your long-standing position with the Country Z government.

You wish to access your Country Z retirement benefits, which will be lost if you do not continue to reside in Country Z.

You acquired ownership of, and reside in, the family home (Property D) in Country Z.

You also own land in Country Z. This land is farmland.

You made the decision to live independent of the family unit as you considered that it was not safe or beneficial for your family to return to Country Z.

Your children attended school in Australia due to the additional facilities and education opportunities.

Your family continue to reside in Australia due to the ties they have developed.

You financially support some members of your family while they continue to reside in Australia, including:

•                Supporting your spouse with groceries and house bills.

•                Supporting your eldest child with life support; including bills and living costs

•                Supporting your youngest child with school bills and living costs

Your other children in Australia are now adults, and do not require you to financially support them.

You have no social or sporting connections in Australia.

In Country Z, your connections are with work colleagues and immediate family. You have a number of siblings in Country Z.

You cancelled your private health insurance in Australia.

You have maintained a bank account in Australia.

You have notified your Australian financial institutions of your foreign resident status for non-resident withholding tax purposes.

You have advised the Australian Electoral role and Medicare that you are a foreign resident.

You do not intend on returning to Australia on a permanent basis.

You will visit your family in Australia for short visits.

You are not a Commonwealth of Australia Government employee for superannuation purposes.

Relevant legislative provisions

Income Tax Assessment Act 1936 subsection 6(1)

Income Tax Assessment Act 1997 subsection 995-1(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 for tax purposes for the relevant income year as follows:

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

•                You do not meet the domicile test.

•                You do not meet the 183-day test.

You do not fulfil the requirements of the Commonwealth superannuation fund test.

In summary, you are not a resident of Australia for tax purposes for the relevant income year.

For more information about residency, see Taxation Ruling TR 2023/1 Income tax: residency tests for individuals.

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