Edited version of your written advice

Authorisation Number: 1012846842239

Date of advice: 29 July 2015

Ruling

Subject: Residency

Question and answer

Are you a resident of Australia for taxation purposes?

No.

This ruling applies for the following periods:

Year ended 30 June 2015

Year ended 30 June 2016

Year ended 30 June 2017

Year ended 30 June 2018

Year ended 30 June 2019

The scheme commenced on:

1 July 2014

Relevant facts and circumstances

You were born in country A and are an Australian citizen.

You lived in Australia since for over 10 years.

Your employment with your Australian employer ends this year.

Your long-term partner has an employment contract in country A which is indefinite and he/she is considered to have resigned from his position in Australia.

You and your partner had been planning to relocate overseas to be closer to family.

You departed Australia this year.

You are joining your long term partner in country A.

You and your partner own a number of properties in Australia. One was your main residence and the other has always been a rental property which continues to be leased. Your main residence will be rented out soon.

You keep your Australian bank accounts for the ease of managing your rental income, expenses and mortgage repayments.

Your car and motorbike have been sold and all your personal and household effects have been shipped to country A.

In country A you have purchased a car and opened local bank accounts.

You are looking at buying a residential property in country A to occupy as your home.

You are renting a house from a relative in country A.

Relevant legislative provisions:

Income Tax Assessment Act 1997 Section 6-5

Income Tax Assessment Act 1936 subsection 6(1)

Income Tax Assessment Act 1997 Subsection 995-1(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. 

The terms resident and resident of Australia, in regard to an individual, are defined in subsection 6(1) of the Income Tax Assessment Act 1936.

The definition offers four tests to ascertain whether each individual taxpayer is a resident of Australia for income tax purposes. These tests are the:

• resides test

• domicile and permanent place of abode test

• 183 day test and

• Commonwealth superannuation fund test.

The primary test for deciding the residency status of each individual is whether they reside in Australia according to the ordinary meaning of the word resides.  If the primary test is satisfied the remaining three tests do not need to be considered as residency for Australian tax purposes has been established.

The resides (ordinary concepts) test

The outcomes of several Administrative Appeals Tribunal (AAT) cases have determined that the word 'resides' should be given the widest meaning and there have been a number of factors identified which can assist in determining if a particular taxpayer is a resident of Australia under this test.

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.

You were born in country A and are an Australian citizen.

You and your long term partner left a few months apart to live in country A where you can be close to your families.

You have resigned from your Australian employer.

You and your partner own a number of properties in Australia. One was your main residence and the other has always been a rental property which continues to be leased. Your main residence will be rented out soon.

Based on the facts above you were/are not residing in Australia according to ordinary concepts from the date you left Australia.

The domicile test

If a person's domicile is Australia they will be an Australian resident unless the Commissioner is satisfied they have a permanent place of abode outside of Australia.

A person's domicile is generally their country of birth. This is known as a person's 'domicile of origin'. In order to show that an individual's domicile of choice has been adopted, the person must be able to prove an intention to make his or her home indefinitely in that country.

Your domicile of origin is country A and your domicile of choice was Australia.

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.

The Commissioner is satisfied that you set up a permanent place of abode outside Australia for the following reasons:

• You and your long-term partner have moved to country A indefinitely to live and work.

• You were born in country A are an Australian citizen.

• You have moved your household effects to country A.

• You are looking at buying a residential property in country A to occupy as your home.

You are not a resident under this test.

The 183-day test

Where a person is present in Australia for 183 days during the year of income the person will be a resident, unless the Commissioner is satisfied that the person's usual place of abode is outside Australia and the person does not intend to take up residence in Australia.  

The Commissioner is satisfied that you set up a permanent place of abode outside Australia, therefore, you are not a resident under this test.

The superannuation test

An individual is still considered to be a resident if that person is eligible to contribute to the PSS or the CSS, or that person is the spouse or child under 16 of such a person. To be eligible to contribute to those schemes, you must be or have been a Commonwealth Government employee.

You are not eligible to contribute to the relevant Commonwealth super fund.

You are not a resident under this test.

Your residency status

You are considered to be a foreign resident of Australia for the period you are living in country A. You are not a resident of Australia for tax purposes.