Edited version of private advice

Authorisation Number: 1052392424474

Date of advice: 06 May 2025

Ruling

Subject: Residency

Question 1

Will you be a resident of Australia for taxation purposes if you exceed 183 days in the relevant income years in Australia?

Answer 1

No.

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:

1 July 20XX

Relevant facts and circumstances

The Commissioner has issued a private ruling in a previous year that you are not a resident of Australia.

You were born in Country Z.

You are a citizen of Country Z.

You initially came to Australia to study prior to being employed in Australia.

You were granted permanent residency status in Australia a number of years ago and were subsequently granted citizenship several years later.

You married an Australian.

You have children.

You and your spouse separated in a few years ago.

You have worked in a number of different countries.

You and your spouse purchased a property prior to becoming a permanent resident.

You and your spouse resided at this residence for a couple of years, when you permanently departed Australia and relocated to Country Y.

You and your spouse rented out the Australian property during your time in Country Y.

You are a manager of a business which now has offices in several countries.

Several years ago, you and your spouse decided to return to Australia to raise your children.

You and your family found permanent leased accommodation and re-established yourselves as Australian tax residents.

You and your spouse jointly purchased a property in Australia.

You and your spouse also purchased a property in Country Z.

You and your spouse subsequently separated.

You travelled to Country X and when back in Australia you stayed in the family home.

You no longer stay in the property when you are in Australia.

Later in the years in which you separated from your spouse, you transferred your ownership share in the property to your spouse.

In the year after the property transfer, you made the decision you would depart Australia and return to Country Z.

Your decision to return to Country Z was supported by your intention to spend more time with your parent who was living on their own and is getting more dependent with age.

You took most of your individual possessions with you upon your departure, including your clothes and any day-to-day items you required.

You are residing in Country Z at the residence you own and travel to Australia several times a year to visit your children and visit the offices of your employer.

You are residing in the Country Z residence with your parent.

You have previously stayed in temporary accommodation when you visit Australia, for example hotels, Airbnb, serviced apartment.

You purchased a house in Australia for investment purposes but also to use when it was not rented for convenience when you visit your children.

You rent the property out through an agent for short term stays and you stay in the property when in Australia if it is vacant for you to do so.

You plan to meet your children and spend time with them in other locations outside Australia.

You will continue to support your spouse and children financially.

You departed Australia a couple of years ago, when you booked a one-way flight to Country Z.

You have been travelling to Australia on a regular basis spending approximately a couple weeks each month visiting your children.

You are currently going through divorce proceedings with your ex-spouse.

You may be required to return to Australia for additional time due to personal matters.

You may exceed 183 days in Australia during the relevant income years due to the personal matters.

You do not intend on returning to Australia on a permanent basis during the relevant income years.

Your usual place of abode will remain in Country Z for the relevant income years.

The utilities for the Country Z residence including gas, electricity, water, TV licence and internet are currently in your spouse's name.

The council tax is currently in both you and your spouse's name.

You anticipate that the name on the utilities and council tax will be changed in the relevant calendar year.

Most of your mail is electronic and does not require hard copies to be sent. All other mail is sent to the Country Z residence or to a PO box in Australia.

You have a professional membership in Country Z. This membership requires payment of annual fees.

You have a Country Z driving licence.

You are registered with a Doctor in Country Z.

You are also eligible for Country Z state pension.

You are considered a resident of Country Z for tax purposes from your return to Country Z.

Based on your role with the business, you expect to undertake some travel to several countries.

You will maintain some of your connections with Australia, albeit more limited.

You will continue to be the director and shareholder of the business. All clients of the business are Australian residents.

You will continue to maintain some of your assets and investments, including your share of the Australian property and your bank accounts.

You will also continue to have business and personal credit cards in Australia.

You do not have a car registered in your name in Australia.

You have an Australian mobile phone; however, the contract is in the company's name.

You have suspended your Australian private health cover.

You have a Medicare card in Australia.

You have an Australian driver's licence for convenience when you visit your family.

The driver's licence has the Country Z residence as the residential and postal address.

You are not eligible to contribute to the PSS or the CSS super funds.

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

Section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997) provides that where you are a resident of Australia for taxation purposes, your assessable income includes income gained from all sources, whether in or out of Australia. However, where you are a foreign resident, your assessable income includes only income derived from an Australian source.

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 will not be a resident of Australia for tax purposes for the relevant income years as follows:

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

You are living and working in Country Y and return to Australia primarily to visit your children.

You may return to visit your children for more trips due to personal reasons and you may exceed 183 days in the relevant income years.

•                     You do not meet the domicile test. The Commissioner is satisfied that you have a permanent place of abode outside Australia in Country Z.

•                     You will not meet the 183-day test.

Despite the potential for you to exceed 183 days in the relevant income years due to personal reasons, you do not intend on taking up residence in Australia permanently and your usual place of abode is in Country Z.

If you do exceed 183 days in Australia, you will not be a resident under this test if your intention not to return to Australia to live does not change.

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

You will not be a resident of Australia for taxation purposes for the relevant income years if you exceed 183 days in Australia and your intention not to return to Australia to live does not change.

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