Edited version of private advice

Authorisation Number: 1051670782014

Date of advice: 01 May 2020

Ruling

Subject: Residency

Question

Are you a resident of Australia for income tax purposes from the date you departed Australia?

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 from the date you departed Australia. Further information on residency can be found by searching 'QC 33232' on ato.gov.au

This ruling applies for the following period:

Income year ending 30 June 2020

The scheme commences on:

XX XXXXl 2020

Relevant facts and circumstances

You were granted a visa to migrate to Australia with your spouse and children.

The purpose of the visa was to allow your spouse to use their specialist knowledge to the benefit of the Australian community and to set up a business in your specialist area employing Australian citizens. The business was established and continues to operate. Your spouse was not the owner of this business and no longer has any association with it.

Prior to migrating, both you and your spouse were foreign citizens having lived all your lives in the foreign country.

You and your spouse have been Australian tax residents since your arrival.

You bought a small property.

You, your spouse and children are now Australian citizens so all have dual foreign/Australian citizenship.

For several years you lived full-time in Australia, spending short holidays in the foreign country.

You are now fully retired as is your spouse. You now spend the majority of your time in the foreign country, returning to Australia periodically to visit your children.

In the months prior to your planned departure from Australia you have spent part of the year in Australia and part in the foreign country.

You have spent your last day of residency in Australia.

Apart from your children, you have no relatives in Australia. Your family are all in the foreign country as are the majority of your friends.

Your children are financially independent of you and live with their partners. They see their future in Australia and have no ties to the foreign country, apart from relatives.

You and your spouse have done the following things to reduce your ties to Australia and to maintain or increase your ties with the foreign country:

• Sold your home in the foreign country and bought a small retirement home nearer to friends and relatives, where you now spend the majority of the year.
• You own and maintain a vehicle in the foreign country.
• Maintain and renovate an existing residential investment property in the foreign country.
• Closed all your Australian accounts.
• Commenced a range of new voluntary and community activities in the foreign country.
• Kept the majority of your savings and pension income in the foreign country, leaving some funds in Australia for your occasional visits.
• All of your current pension income comes from the foreign country.

From your departure from Australia your retirement situation will be as follows:

• Spending the majority of the year in the foreign country.
• Returning to Australia each year to visit your children and Australian friends.
• Maintaining your property in as a base for your visits.
• Not working in Australia.

Relevant legislative provisions

Income Tax Assessment Act 1936 Subsection 6(1)

Income Tax Assessment Act 1997 Section 6-5

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