Edited version of your written advice

Authorisation Number: 1051340917623

Date of advice: 21 February 2018

Ruling

Subject: Residency

Question

Did you cease to be a resident of Australia for income tax purposes after Winter 20XX?

Answer

Yes

This ruling applies for the following periods:

Year ended 30 June 20AA

Year ended 30 June 20BB

Year ended 30 June 20CC

Year ended 30 June 20DD

Year ended 30 June 20EE

The scheme commences on:

24 June 20FF

Relevant facts and circumstances

You were born in Country A and acquired citizenship by birth. You lived in Country B until the age of XX. You also received Australian citizenship in Autumn 20YY. You moved to Australia at the age of XX. You left Australia in Summer 20YY to seek work in your field and returned to Australia in 20ZZ.

You left Australia to work in Country C, arriving in that country in Winter 20ZZ and leaving Country C for Country A in Winter 20AA. When you left Australia your intention was to live overseas permanently. In Country C you worked for a subsidiary of an Australian company before departing for Country A. While in Country C you lived in rented accommodation with yearlong leases.

You arrived in Country A in Winter 20AA using a trainee visa. This visa has now expired and you now use a local visa for your entry and exit to and from Country A.

You may apply for a Child of Country A Parent visa in future. This visa would provide permanent residency.

In Country A you work under contract to a local company.

Due to local laws in Country A you renounced your citizenship of Country A and are now only a citizen of Australia.

Your parents have a house in Australia but both have recently been living in Country A. Your parent A is a citizen of Country A with permanent residency in Australia. Your parent B is an Australian citizen with a spouse residency visa valid for Country A. They intend to live in both countries.

When in Country C you rented an apartment. In Country A you were provided company accommodation in a serviced apartment block (rented under your employers name but for your exclusive use) before moving to your own apartment.

You have no property in Australia. You retain some everyday bank accounts in Australia and have no other investments or vehicles.

Upon leaving Australia you advised both Medicare and the Australian Electoral Commission of your departure. You also cancelled your private health insurance.

You have provided details of your travel to and from Australia which show that you were onshore for XX days in the 2018 income year, YY days in the 2017 year and ZZ days in the 2016 year.

You sold or disposed of all other personal assets that you could not take with you when you departed Australia. In Country A you have acquired bank accounts and a vehicle, as well as personal and household effects.

You have made connections with local communities in both Country A and Country C by joining various clubs and social organisations. You retain no sporting or social connections to Australia.

You have never been an employee of the Commonwealth Government and hence are not a member of any government superannuation scheme.

Relevant legislative provisions

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

Income Tax Assessment Act 1936 Subsection 6(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 (ITAA 1936). The definition provides four tests to ascertain whether a taxpayer is a resident of Australia for income tax purposes. These tests are:

● the resides test,

● the domicile test,

● the 183 day test, and

● the superannuation test.

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

Resides 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.

The Courts and the Tribunal have generally taken into account the following eight factors in considering whether an individual is an Australian resident according to ordinary concepts in an income year:

● Physical presence in Australia;

● 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 compared to the foreign country concerned; and

● Maintenance of a 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 Landy v FC of T 2016 ATC 10-435;[2016] AATA 754, the taxpayer took on a supervisory role at an oilfield in Oman that lasted 21 months. On or before departure, he cancelled his Medicare, notified his private health insurance fund, requested his name be removed from the electoral roll and completed an outgoing passenger card indicating that he was leaving Australia permanently. However, throughout his employment in Oman he financially supported his wife in Australia, garaged his two motor vehicles at her home, maintained a joint bank account with his wife, maintained his offices as director and secretary of an Australian company (his wife being the other director and shareholder) and resumed living with his wife on his return. The AAT found that the taxpayer's lack of severance of connections with Australia, and the lack of establishment of enduring and lasting living ties with Oman, required a conclusion that the taxpayer had not ceased to be a resident of Australia as ordinarily understood.

In your case, you are a citizen of Australia who departed Australia with the intention of residing overseas permanently. You have provided details of your travel to and from Australia which show that you were onshore for brief periods in recent years.

Your behaviour is consistent with not residing in Australia and being considered a non-resident for tax purposes under the resides test after mid 2014.

We will now also include a discussion of the ‘domicile and permanent place of abode’ test as an alternative argument.

The domicile test

Under the domicile test, a person is a resident of Australia if their domicile is in Australia unless the Commissioner is satisfied they have a permanent place of abode outside of Australia.

Domicile

“Domicile” is a legal concept to be determined according to the Domicile Act 1982 and common law rules. A person’s domicile is in their country of origin unless they acquire a different domicile of choice or operation of law. To obtain a different domicile of choice, a person must have the intention to make their home indefinitely in another country, usually done by obtaining a migration visa. The domicile of choice which a person has at any time continues until that person acquires a different domicile of choice.

In your case, you are a citizen of Australia. You have left Australia and have chosen to live in Country A.

You have not abandoned your domicile in Australia and acquired a domicile of choice in Country A as you do not have the right to reside permanently in that country. You have not yet applied for a visa that will allow you or to remain there indefinitely.

Permanent place of abode

A person’s ‘permanent place of abode’ is a question of fact to be determined in the light of all the circumstances of each case. (Applegate v. Federal Commissioner of Taxation 78 ATC 4051; 8 ATR 372 (Applegate))

In Applegate, the court found that ‘permanent’ does not mean everlasting or forever but it is to be contrasted with temporary or transitory.

The courts have considered ‘place of abode’ to refer to a person’s residence, where he lives with his family and sleeps at night.

Taxation Ruling IT 2650 Income Tax: Residency – Permanent place of abode outside Australia (IT 2650) provides a number factors which are used by the Commissioner in reaching a satisfaction as to an individual’s permanent place of abode. These factors include:

(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 intended and actual length of the individual’s stay in the overseas country;

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

(e) the establishment of a home outside Australia;

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

(g) the duration and continuity of the individual’s presence in the overseas country; and

(h) the durability of association that the individual has with a particular place in Australia, i.e. maintaining bank accounts in Australia, informing government departments, place of education of the taxpayer’s children, family ties.

Paragraph 24 of IT 2650 states that the weight to be given to each factor will vary with individual circumstances of each case and no single factor is conclusive. Greater weight should be given to factors (c), (e) and (f) than to the remaining factors.

Based on all the facts, the Commissioner is satisfied you have established a permanent place of abode outside Australia, initially in Country C, and then in Country A. Therefore you are considered a non-resident of Australia under this test from the date you left Australia.

The 183 days 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.

In your circumstances your travel to Australia is limited to relatively brief visits. You have provided details of your travel to and from Australia which show that you were onshore for brief periods in recent years. Accordingly, you will not be treated as 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 Public Sector Superannuation Scheme (PSS) or the Commonwealth Superannuation Scheme (CSS), or that person is the spouse or child under 16 of such a person.

You are not a contributing member of the PSS or the CSS or a spouse of such a person, or a child under 16 of such a person. You will not be treated as a resident under this test.

Residency status

As you do not satisfy any of the four tests of residency outlined in subsection 6(1) of the ITAA 1936, you are a non-resident of Australia for income tax purposes from the date of your departure.