Edited version of your private ruling

Authorisation Number: 1012580077014

Ruling

Subject: Residency

Question and answer

Are you an Australian resident for taxation purposes from mid 20XX until you moved to Country A in late 20YY?

Yes.

This ruling applies for the following periods

Year ended 30 June 2013,

Year ended 30 June 2012,

Year ended 30 June 2011,

Year ended 30 June 2010.

The scheme commences on

1 July 2009.

Relevant facts and circumstances

You are an Australian citizen and Australia is your country of origin.

You hold an Country B passport and assume that you are a citizen of that country.

You have been a permanent resident of country A for more than 12 months.

You left Australia to take up employment on a commercial vessel under contract in foreign waters.

You live and work on the ship.

Prior to your departure to work on foreign vessels in you lived in your home in Australia.

You first formed your intention to live outside of Australia permanently in # when you worked on various foreign flagged vessels.

You had no intention of returning to Australia except to visit family and friends.

You returned to Australia on X occasions totalling less than 10 weeks.

Your assets in Australia included an investment property which you owned from # until #, household effects kept in storage (until sold to fund your country A business), and an Australian bank account.

From # your assets in country A include a business, a motor vehicle and a bank account.

You received rental income while you owned the Australian rental property.

You do not have a position or job being held for you in Australia.

You do not have a spouse.

Your parents and your sibling live in Australia.

You are not a member of any social or sporting clubs in Australia.

You have a gym membership in country A.

You have never been a Commonwealth Government employee.

Relevant legislative provisions

Income Tax Assessment Act 1997 Subsection 995-1(1).

Income Tax Assessment Act 1936 Subsection 6(1).

Anti-avoidance rules

Does Part IVA or any other anti-avoidance provision apply to this ruling?

The application of Part IVA of the ITAA 1936 has not been considered as this topic is in the MEI low risk PART IVA list as specified in ORCLA.

Reasons for decision

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

The terms resident and resident of Australia, in regard to an individual, are defined in subsection 6(1) of the ITAA 1936. The definition provides four tests to ascertain whether a taxpayer is a resident of Australia for income tax purposes. These tests are:

1. the resides test

2. the domicile test

3. the 183 day test

4. the superannuation test

The first two tests are examined in detail in Taxation Ruling IT 2650 Income Tax: Residency - permanent place of abode outside Australia (IT 2650).

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

However, where an individual does not reside in Australia according to ordinary concepts, they may still be considered to be an Australian resident for tax purposes if they satisfy the conditions of one of the three other tests.

The resides test

The ordinary meaning of the word 'reside', according to the Macquarie Dictionary, 2001, rev. 3rd edition, The Macquarie Library Pty Ltd, NSW, is 'to dwell permanently or for a considerable time; having one's abode for a time', and according to the Compact Edition of the Oxford English Dictionary (1987), is 'to dwell permanently, or for a considerable time, to have one's settled or usual abode, to live in or at a particular place'.

Recent case law decisions have considered the following factors in relation to whether the taxpayer was a resident under the 'resides' test:

(i) Physical presence in Australia

(ii) Nationality

(iii) History of residence and movements

(iv) Habits and "mode of life"

(v) Frequency, regularity and duration of visits to Australia

(vi) Purpose of visits to or absences from Australia

(vii) Family and business ties to different countries

(viii) Maintenance of Place of abode.

These factors are similar to those which the Commissioner has said are relevant in determining the residency status of individuals in IT 2650 and Taxation Ruling TR 98/17 Income tax: residency status of individuals entering Australia. It is important to note that not one single factor is decisive and the weight given to each factor depends on individual circumstances.

In the recent case of Iyengar v FCT [2011] the Administrative Appeals Tribunal held that the taxpayer was a resident of Australia, even though he was working overseas. The taxpayer's family ties, his intention (to complete his contract) and motive (to pay off his mortgage), and his maintaining an Australian place of abode while working overseas, were all indicative that he was an Australian resident during the relevant period.

The fact that the taxpayer's visits to Australia in the relevant income years were relatively short in duration compared to the time spent abroad in those years, did not preclude him from being an Australian "resident" in those income years.

The taxpayer's intention was to go to Dubai (and later Doha) and work for an oil company for as long as it took to complete his contract and then to return to Australia, which he did. His motivation for doing so was to use the money he earned under the contract to pay down the mortgage on the family home as soon as possible. Such an intention (and motive) was indicative that the taxpayer was an Australian "resident" in the relevant period.

The taxpayer's conduct subsequent to the period he spent in the Middle East, taken together with his continuity of association with Australia and his intention to return to Australia upon completion of the contract, was consistent with him being a "resident" of Australia.

In the recent case of Pillay v FCT [2013] the Administrative Appeals Tribunal held that the taxpayer was a resident of Australia even though his spouse accompanied him overseas to live and work.

The taxpayer was born in South Africa and was an Australian citizen. He was a doctor who had been working in East Timor since 2006. Since then, he was physically present in East Timor for between 9 and 11 months each year, and between 6 to 8 weeks in Australia each year. When in East Timor, the taxpayer stayed in a self-contained apartment supplied by his employer.

Together with his wife, he purchased a property in Bali which they called home. They also owned a property in Sapphire Beach in Australia, which was left vacant for most of the time and appeared to be occupied only during the few weeks of the year when the taxpayer was visiting Australia. During his visits to Australia, the taxpayer divided his time between the Sapphire Beach property and visiting his children and grandchild. The taxpayer had Australian bank accounts which he used to meet his living expenses. Further, there were circumstances to indicate that he intended to divide his time between Bali and Australia when his employment in East Timor ends.

What was significant in this matter was the "continuity of association" that the taxpayer had retained with Australia. Although he had been working for an extensive period in East Timor, and although he had an apartment to stay in while he had been working there, he did not seem to have brought himself to regard East Timor as home.

Indeed, he and his wife regarded the Bali property as home, despite the fact that they had little time to spend there together. His connection with East Timor appeared to be one based almost entirely on his employment arrangement. He did not express an intention to remain in East Timor after his employment ends. Rather, he expressed an intention to divide his time between Bali and Sapphire Beach - hardly an indication that his ties with Australia had been broken.

Factors relevant to the question of whether the taxpayer resided in Australia included his;

· physical presence in Australia;

· his nationality,

· history of residence and movements,

· habits and "mode of life",

· frequency, regularity and duration of visits to Australia,

· purpose of visits to or absences from Australia,

· family and business ties with Australia, and

· maintenance of a place of abode in Australia.

(i) Physical presence in Australia

A person does not necessarily cease to be a resident because he or she is physically absent from Australia.

In relation to this the AAT has stated that:

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 involuntary, 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, together with an intention to return to that place and an attitude that the place remains home.

In recent court cases taxpayers were found to be residents of Australia for income tax purposes even though they had only spent a minimal period in Australia.

In Iyengar v FC of T (Iyengar's case), it was indicated that there is a requirement that you at least be physically present in Australia for part of an income year. Further in this case it was considered that the taxpayer remained a resident of Australia for income tax purposes even though during the period he was working overseas (2 years and 7 months) he had only returned to Australia for a two week period and for a 10 day period.

· You were employed and lived on a commercial vessel in foreign waters and returned to Australia as on occasions totalling less than 10 weeks.

(ii) Nationality

The nationality of a person is rarely a decisive factor in deciding whether or not a person resides in a location, however it is one factor that is considered along with all of the circumstances of each case.

· You are a citizen of Australia and Australia is your country of origin. You have foreign passport and also consider yourself a citizen of country B

(iv) Habits and "mode of life"

The Commissioner regards a person's habits and daily routines in regard to their domestic and business arrangements as strongly indicative of residency status. This is particularly relevant to determining the residency of a person who enters Australia, but is also relevant in assisting to determine the residency status of a person who leaves Australia.

· From # until # you lived and worked on board a commercial vessel,

· you have been a permanent resident of country A since #,

· you maintain assets in Australia while you are living and working overseas; and

· your furniture and personal effects are kept in storage in Australia.

(v) Frequency, regularity and duration of visits to Australia

Where a person is living in a country and visits another, the frequency and regularity of their visits is an important factor to be considered in determining whether or not they are resident in that other country.

Case law has shown that a taxpayer can be a resident of a country even if they only spend a short period of time in that country, for example the AAT found a taxpayer to reside in Australia despite the fact that he had only been present in Australia in the relevant income year for separate periods of only two weeks, three weeks and two and half weeks. A further decision found a taxpayer who had only been present in Australia for two separate periods of two weeks and ten days during a period of two years and seven months to be residing in Australia.

When considering the issue of return visits to Australia by a taxpayer who was living and working overseas, the Tribunal in Iyengar's case also noted that the brevity of a visit to a particular country compared to length of time spent abroad does not of itself exclude an individual from being a resident in the country visited. Further, the taxpayer in Iyengar had only been present in Australia for two separate periods of two weeks and ten days during a period of two years and seven months and was also considered to be a resident of Australia for income tax purposes.

· You intend to return to Australia to visit family and vacation.

(vi) Purpose of visits to or absences from Australia

· You first formed your intention to live outside of Australia permanently in # when you worked on various foreign flagged vessels and continued to live and work on vessels outside Australia

· You do not intend on returning to Australia except to visit family and vacation.

(vii) Family and business ties to Australia and the overseas country or countries

Case law has established that the family or business ties that an individual retains with a country are relevant in determining whether an individual has remained or ceased to be a resident.

Family

The Macquarie Dictionary defines 'family' as:

· parents and their children, whether dwelling together or not.

· one's children collectively.

· any group of persons closely related by blood, as parents, children, uncles, aunts, and cousins.

Consistent with the findings in Case 5/2013 and Iyengar, and the definition of family provided by the Macquarie Dictionary, your parents and brother will remain in Australia, who you visit throughout your employment overseas.

Business or economic ties

· You receive income from your Australian rental property,

· You maintain an Australian bank account,

· You sold your Australian property and your furniture in # to fund your business interest in country A.

Assets and liabilities

You have an investment property in Australia which will is rented out while you are overseas.

You will keep an Australian bank account, and furniture and personal effects in storage.

In country A you have a business, a motor vehicle and a bank account.

(viii) Maintenance of Place of abode

The maintenance of a place of abode in Australia is an important factor when considering the residency status of a taxpayer.

You retain ownership of Australian assets, including your investment property and furniture and personal effects.

Summary

As stated above it is important that not one single factor is decisive and the weight given to each factor depends on individual circumstances.

There are several factors outlined above which indicate that you have not ceased to be a resident of Australia. Specifically;

· While you were working on the overseas vessels your family and assets remained in Australia,

· your absence from Australia was work related; and

· you returned to Australia to visit family on three occasions totalling 9 weeks.

Based on a consideration of all of the factors outlined above, you are a resident of Australia according to ordinary concepts as you maintained a continuity of association with Australia for the relevant period.

The domicile test

If a person is considered to have their domicile in Australia they will be considered an Australian resident unless the Commissioner is satisfied they have a permanent place of abode outside of Australia.

In order to show that a new domicile of choice in a country outside Australia has been adopted, the person must be able to prove an intention to make his or her home indefinitely in that country.

You did not do this until # when you moved permanently to the overseas country and established a business.

The expression 'place of abode' refers to a person's residence, where they live with their family and sleep at night. In essence, a person's place of abode is that person's dwelling place or the physical surroundings in which a person lives.

A permanent place of abode does not have to be 'everlasting' or 'forever'. It does not mean an abode in which a person intends to live for the rest of his or her life.  An intention to return to Australia in the foreseeable future to live does not prevent the taxpayer in the meantime setting up a permanent place of abode elsewhere.

In your case, you were living and working on vessels in foreign waters. When your employment ceased in # you returned to Australia for a short period then moved to country A.

Therefore, you are a resident of Australia until your move to country A.

The 183-day test

This test does not apply to you as it has been identified that you not in Australia for 183 days or more during the ruling period.

The superannuation test

This test does not apply to you as it has been identified that you are not a member of the PSS or the CSS, a spouse of such a person, or a child under 16 of such a person.

Your residency status

Although you had a limited physical presence in Australia and did not intend returning to Australia to live permanently. The Commissioner is not satisfied that given a consideration of all of the factors outlined above, that you severed your family, economic, and legal ties with Australia until you sold your assets and moved to country A in #.

The Commissioner is of the opinion, that the driving motivation for your travel overseas is to pursue career prospects and to meet liabilities in Australia, rather than to establish a new home.

You maintained a continuity of association with Australia up until # and accordingly remain a resident of Australia for taxation purposes.