Edited version of your written advice

Authorisation Number: 1013020879902

Date of advice: 25 May 2016

Ruling

Subject: Residency

Question

Were you a resident of Australia for income tax purposes from the day you departed Australia for an overseas country?

Answer

No.

This ruling applies for the following periods:

Year ending 30 June 2015

Year ending 30 June 2016

Year ending 30 June 2017

Year ending 30 June 2018

The scheme commences on:

1 July 2018

Relevant facts and circumstances

You are an Australian citizen.

You moved overseas with your spouse who had commenced a new employment contract.

You intend to stay overseas until at least when your spouse's employment contract expires.

You have no fixed plans after the end of your spouse's employment contract.

Your spouse's contract includes an option to be rehired.

You are working part-time as a volunteer.

You have an entry/re-entry visa which would terminate immediately if you ceased to be a dependant of your spouse or your spouse ceases to hold a valid work permit.

You have adult children who live and work overseas.

You are living in a rented house overseas exclusively for your and your spouse's use. The lease is in the name of your spouse's employer. Your spouse receives a housing allowance from their employer that covers part of the housing cost and the remainder is paid by your spouse.

The lease commenced from your arrival and has been extended until your spouse's contract expires.

The overseas rental property was unfurnished and you have purchased furniture, white goods, electrical goods and appliances for the property.

You and your spouse have installed internet and incurred electricity and water rates in your name at the overseas property.

You have a mobile phone contract in the overseas country.

You and your spouse personally incur the cost of groceries whilst overseas.

Your spouse has purchased vehicles overseas for you both to use.

You have joined various recreational clubs.

You have private health insurance in the overseas country.

You opened a bank account in the overseas country.

You have retained the majority of your cash and investments in Australia as this is where you ultimately wish to retire to.

You have some cash in in the overseas countries.

You omitted to notify your financial institution and registries that you had ceased to reside in Australia initially but you later remedied this.

Your mailing address is a PO Box in Australia which your family members check and you have elected to receive as much of your mail as possible via email. When necessary, your family members, courier, the mail to you.

You had initially omitted to have yourself removed from the electoral roll since relocating overseas but remedied this at a later date.

You suspended your private health insurance when you departed Australia. Of occasion you reactivate your private health insurance when in Australia visiting and then re-suspend it again.

Since moving overseas you have maintained your cars in Australia which are registered and insured in your name. Both yours and your spouse's families use the cars as second cars.

You jointly own properties in Australia with your spouse. You own another property solely in your own name.

Your residence has been left vacant and is used by you, your spouse, and other family members when visiting from overseas.

You do not have a financial need to rent out the Australian property that was your residence prior to departing. You have retained the property as convenient accommodation for yourself and your extended family. No one permanently lives in the property.

Your furniture primarily remained in the Australian property that was your residence prior to departing and only limited personal effects - clothing and personal items - were shipped overseas.

Your other Australian residence has been retained for use as a holiday house for use by your extended family. You have not rented out the property. Your and your spouse's family have been using the property as a holiday house.

You have maintained the phone and internet connection at the Australian properties due to the ongoing use of the properties by family members.

The other property you own is an investment property which is rented out.

Over a period of time you made some infrequent trips to Australia to visit family. You took limited personal effects with you when you visited Australia.

You expect to have a similar schedule for trips to Australia for the following year period.

You also travelled outside of the overseas country you have moved to and Australia on a number of occasions over a period of time.

You visited some of the other overseas countries for attendance at work related events with your spouse, to visit your family and to holiday.

You or your spouse do not have a superannuation account with the Commonwealth Service superannuation scheme nor are you a member of the Public Sector superannuation Scheme.

Relevant legislative provisions

Income Tax Assessment Act 1936 Subsection 6(1)

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

Reasons for decision

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

Section 6-5 of the ITAA 1997 provides that where you 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 ITAA 1936. The definition provides four tests to ascertain whether a taxpayer is a resident of Australia for income tax purposes. The tests are:

• the resides test,

• the domicile test,

• the 183 day test, and

• the superannuation test.

If any one of these tests is met, an individual will be a resident of Australia for taxation purposes.

The resides (ordinary concepts) test

The ordinary meaning of the word 'reside', according to the Macquarie Dictionary, 2001, rev. 3^rd 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'.

You and your spouse have gone overseas for work related purposes, you intend to be overseas for over two years, you are living in long term accommodation and you have physically spent the majority of your time in the overseas country.

Based on the facts above you will not be residing in Australia according to ordinary concepts.

The domicile test

Under this test, a person is a resident of Australia for tax purposes if their domicile is in Australia, unless the Commissioner is satisfied that their permanent place of abode is outside of Australia.

Generally speaking, persons leaving Australia would be considered to have maintained their Australian domicile unless it is established that they have acquired a different domicile by choice or by operation of law.

The courts have considered a person's 'place of abode' is where they consider 'home'. In R v Hammond (1982) ER 1477, Lord Campbell CJ stated that "a man's residence, where he lives with his family and sleeps at night, is always his place of abode in the full sense of that expression."

Paragraphs 13 and 14 of Taxation Ruling IT 2650 Income Tax: Residency - Permanent place of abode outside Australia discuss the FCT v Applegate (79 ATC 4307; (1979) 9 ATR 899) case. The Federal Court rejected the Commissioner's argument that a permanent place of abode outside Australia required an intention to live outside Australia indefinitely without any intention of returning to live in Australia, other than at some remote, albeit specific point in time. 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 their 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.

Taxation Ruling IT 2650 states the following factors need to be taken into account:

(a) the intended and actual length of the individual's stay in the overseas country;

(b) any intention either to return to Australia at some definite point in time or to travel to another country;

(c) the establishment of a home outside Australia;

(d) the abandonment of any residence or place of abode the individual may have had in Australia;

(e) the duration and continuity of the individual's presence in the overseas country; and

(f) the durability of association that the individual has with a particular place in Australia.

It is clear from the case law that a person's permanent place of abode cannot be ascertained by the application of any hard and fast rules. It is a question of fact to be determined in the light of all the circumstances of each case.

Your domicile of origin is Australia. The Commissioner is satisfied that you had a permanent place of abode outside Australia for the following reasons:

• You are renting a property overseas until the expiration of your spouse's employment contract

• You have purchased furniture, white goods and electrical goods for your use overseas

• You intend to reside overseas for a period longer than two years

• You have accompanied your spouse overseas

• You have opened bank accounts, joined associations, purchased vehicles and obtained private health insurance overseas

• After a period of time you informed your Australian financial institutions and registries and the electoral roll that you had ceased to reside in Australia

• You have and will be visiting Australia for short infrequent visits.

Whilst you have maintained the majority of your investments and connections with Australia - visiting family, continuing the ownership of your properties, furniture, vehicles and bank accounts and your spouse investing some of their overseas salary into Australia you have done so as you eventually plan to retire to Australia. As you have highlighted the maintenance of assets in Australia was considered in Administrative Appeals Tribunal Case 4834 (1988) 89 ATC 196 (Case W13), and it was considered that whilst the applicants had retained asset in Australia, including supermarket premises, their house and furniture and some rental proceeds that in every other sense the applicants were living outside of Australia during those years and the period was long-term and indefinite.

As these circumstances support the view that your permanent place of abode is outside Australia, you are not a resident of Australia for tax purposes under the domicile test. In your case if you were to rent out your Australian properties rather than retain them this would not change your residency status granted all other facts were the same.

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.

You were physically present in Australia until the day you departed. Therefore for the year ended 30 June 2015 your presence in Australia exceeded 183 days. However, you and your spouse have left Australia indefinitely and have permanent work and established a home overseas.

Until you left Australia your usual place of abode was your home in Australia; it cannot be said that your usual place of abode was overseas during that year. Under the 183 day test you were a part-year resident.

Your Australian residency ceased from the date you departed.

The superannuation test

An individual is still considered to be a resident if that person is eligible to contribute to the Public Sector Superannuation scheme or the Commonwealth Service Superannuation scheme, 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 and your spouse are not eligible to contribute to the relevant Commonwealth Superannuation funds.

You are not a resident under this test.

Your residency status

From the day you departed Australia you are not a resident of Australia for taxation purposes.