Edited version of private advice

Authorisation Number: 1051635270093

Date of advice: 15 April 2020

Ruling

Subject: Residency of Australia for taxation purposes

Question 1

Are you a resident of Australia for income tax purposes?

Answer

No. Having considered your circumstances as a whole and the residency tests, it is accepted that you are not a resident of Australia for income tax purposes. Further information on residency can be found by searching 'QC 33232' on ato.gov.au

Question 2

Will the Taxpayer be treated as a resident of Country Z under the tie-breaker rules contained in the double tax agreement between Australia and Country Z?

Answer

Not applicable.

This ruling applies for the following periods:

Year ended 30 June 2019

Year ending 30 June 2020

Year ending 30 June 2021

Year ending 30 June 2022

The scheme commences on:

1 July 2018

Relevant facts and circumstances

You are an Australian citizen.

You are a director of Company Z.

Previously you held an ownership interest in Company Z.

You spend an equal amount of time in Australia and Country X undertaking work for Company Z.

You only visit family when in Australia and have limited client engagements.

You were granted a skilled migrant visa by the Country X authorities which allowed you to live and work in Country X for two years with a right to further extension.

Your spouse was granted a Country X visa as a dependent.

Company B was incorporated in Country X.

You were a joint trustee of a Family Trust.

Based on taxation return details, you have not derived any income from the Family Trust at any time during specific relevant income years.

In late 20XX, your Country X visa was renewed for another three years.

You lived in the Country X for the majority of each income year for the last few years.

You continued visiting Australia several times each year and stayed for a few weeks each time during this period for both business and family reasons.

Your spouse is with you for most of the time while you are in Country X. You have children and grandchildren living in Australia.

You have maintained most of your assets in Australia including real property and shares.

Your Australian family home is owned by your spouse, and was available to you and your family at all times until mid 20XX.

You have engaged the services of a gardener to provide ongoing maintenance of the home while you are in Country X.

You have several family holiday properties in Australia which you visit from time to time when you are in Australia.

You have maintained a life insurance policy and a private health insurance policy in Australia.

You are a member of a self-managed superannuation fund in Australia and have maintained your membership with the fund.

You have purchased a lifestyle rural property in Australia which will be used as a holiday home by you.

You visit Australia a few times each income year and spend several weeks each year in Australia and plan to do so indefinitely.

You have obtained permanent residency in Country X.

You have spent most of your time in Country X since 20XX to support the Country X business.

You received salary and dividends from your Country X employer Company Z while working in Country X prior to the restructure.

You have a bank account and credit card account with Country X financial institutions for day to day living.

You live in rented accommodation while working in Country X, which is available to you at all times.

You intend to purchase a private residence or an investment property in the Country X in the foreseeable future.

You own a car in Country X.

You and your spouse have been removed from the Australian electoral roll by the Australian Electoral Commission (AEC). You have received a letter from the AEC informing you that you are no longer an Australian resident and therefore are removed from the Australian electoral roll.

Relevant legislative provisions

Income Tax Assessment Act 1936 subsection 6(1)

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