Edited version of private advice

Authorisation Number: 1051790723922

Date of advice: 18 December 2020

Ruling

Subject: Residency

Question

Are you resident for taxation purposes from early in 20XX?

Answer

No.

This ruling applies for the following periods:

Year ended 30 June 20XX

Year ended 30 June 20XX

Year ended 30 June 20XX

Year ended 30 June 20XX

Year ended 30 June 20XX

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances

General

You were born in Australia and you are an Australian citizen.

You have a spouse and two children who are both of a young age (one was born in Australia, and the other was born in Country A).

From mid- 20XX to mid to late 20XX you were engaged by an Australian Company in Australia as a Senior Manager and Partner for team focused on global financial matters.

In early 20XX you accepted an offer of employment to work as a Senior Manager with a Company based in Country A (Company A), where that Company's only office is in Country A.

You moved to Country A in early 20XX with the intention of residing in Country A permanently and since that time you have resided in Country A permanently.

A few weeks later your family joined you in Country A with the same intention.

You commenced work in Country A in early 20XX, which continued until mid-to-late 20XX.

Prior to your departure to Country A in early 20XX, and following your acceptance of the offer of employment in Country A, you:

•         Arranged for your furniture, household effects and personal belongings, including beds, lounges, other furniture and appliances to be packed and shipped to Country A (which occurred in early 20XX).

•         Sold your motor vehicle, and your spouse's motor vehicle.

•         Secured a long- term lease of an Apartment in Country A which commenced in early 20XX.

In early 20XX, your spouse and eldest child moved to Country A.

In early 20XX, your youngest child was born in Country A.

In late 20XX you established a Company based in Country A (Company B). Company B operates within the Finance sector, whom you work for on a continuous permanent full-time basis.

Due to Company B's target sources of income are from various other overseas countries, it is imperative that Company B is based in Country A.

You maintain strong professional and career interests in Country A and you intend to continue your career in Country A for an indefinite period.

You have held a working visa issued by the Country A Immigration Department, which has let you live and work in Country A since early 20XX.

Your working visa was supplied by your employer in Country A.

A working visa issued by the Country A Immigration Department does not enable an individual to stay permanently in Country A. Your visa expires in mid- 20XX (one month before your Australian passport expires). Your visa will be extended when you obtain a new Australian passport (which you intend to do on expiration of your current Australian issued passport).

You are currently not eligible to obtain permanent residency in Country A as you have not yet satisfied the relevant qualifying period (living in Country A for several years), however you intend to apply for permanent residency as soon as you have satisfied that qualifying period.

You have engaged a domestic helper and driver in Country A on long-term rolling 2-year contracts.

In mid-20XX, your spouse and two children moved back to Australia in furtherance of your spouse's career with an Australian firm, and to also enable both of your children to access quality education.

However, you have since remained living and working in Country A, and you intend to do this for an indefinite period.

Your only absences from Country A between early- 20XX and mid- 20XX were on an ad hoc basis for short global business trips (for example meetings with clients).

You hold private health insurance in Country A.

You cancelled your Australian health insurance when you departed Australia.

You have an Australian Medicare card however you do not use it when you are in Australia. You pay cash for any Australian medical consultations.

You are currently enrolled with the Australian Electoral Commission as an overseas elector.

Visits to Australia since commencing living and working in Country A

The following is a summary of your trips to Australia since early 20XX:

As shown above, since mid- 20XX your only absences from Country A were on an ad hoc basis for short trips to Australia to visit your family and to assist your family with their move to Australia, and you typically work when you travel.

When returning to Australia you:

•         Declare that your country of residence is Country A (as a visitor or temporary entrant to Australia) when completing incoming passenger cards; and

•         Travel with both carry on and check in luggage as you do not have any significant personal property in Australia other than limited clothing.

Early in 20XX you returned to Australia for a short trip to visit your family.

However, shortly after that time the World Health Organisation (WHO) declared COVID-19 to be a global pandemic and the Australian State Government (where your family resided) declared a major emergency triggering a state-wide shutdown and closure of the state.

You were also advised at that time that the Australian Federal Government issued a travel ban in respect of leaving Australia to travel to Country A.

Since your arrival in Australia in early 20XX, you have been unable to return to Country A due to the COVID-19 pandemic, and as a result you have spent more than 183 days in Australia during the 20XX-XX financial year.

Whilst you have spent more than 183 days in Australia during the 20XX-XX financial year, you intend to return to Country A as soon as possible to resume living and working there on an indefinite basis.

You would not have spent more than 183 days in Australia during the 20XX-XX financial year if there was no COVID-19 pandemic.

You state you do not intend to take up residence in Australia.

Since you departed Australia in early 20XX you have lodged income tax returns in Country A.

You have lodged the following Australian tax returns:

(a)  return for the 20XX income year - Australian Resident (for part of the year);

(b)  return for the 20XX income year - Non-Resident;

(c)   return for the 20XX income year - Non-Resident;

(d)  return for the 20XX income year - Non-Resident.

Further information regarding why you have not been able to return to Country A

The Federal Government imposed a ban early in 20XX prohibiting any Australian citizen from leaving Australia in response to the COVID-19 pandemic.

The Australian State Government where your family resides also imposed strict lockdown measures and travel restrictions (including a curfew, the five-kilometre rule and travel permitted only for four main reasons: shopping for food/essential items; care and caregiving; daily exercise; and work).

Further, due to the nature of your employment role, you require constant access to on-line resources and must always be accessible for clients. As such it would be extremely difficult for you to travel under the current circumstances.

You are not aware of any exemptions that you are eligible for in order to be granted permission by the relevant travel authorities to return to Country A and that would logistically enable you to continue to perform your role.

You are currently still in Australia and you intend to return to your home in Country A as soon as logistically possible. You anticipate this will be in the first half of the 20XX calendar year (subject to any additional COVID-19 outbreaks or other unforeseen circumstances).

Accommodation

You do not own any real estate in Australia.

Your spouse acquired a property in Australia in 20XX. You and your spouse resided in this property prior to you both departing Australia in 20XX. Your spouse still owns this property (and it was not sold by your spouse when they departed Australia in 20XX).

Since early 20XX, you have rented accommodation in Country A on a fixed long-term basis with the right to renew and you continue to rent such accommodation in Country A.

Following the period you were living in the first rental accommodation in Country A (since early 20XX), around a year later you and your family moved to a different rental accommodation in Country A to be closer to your eldest child's school. You and your family were required to rent two apartments between early 20XX and mid-20XX as you were evicted from the first apartment after 14 months due to the landlord requiring the apartment for their own use.

In mid- 20XX, you moved to a one-bedroom apartment in Country A as your family returned to Australia. This is your current apartment, and you intend to continue living there indefinitely.

All of the leases (including the lease for the current apartment) were long-term 2-year leases.

Assets

On arrival in Country A in early- 20XX, you purchased additional necessary furniture and household effects to make a home in Country A.

In early 20XX you purchased a motor vehicle in Country A.

In Country A you have:

•         Bank accounts; and

•         Credit cards; and

•         Share accounts with Interactive Brokers and investments.

You also own securities / stocks in Country A.

You hold two Australian bank accounts jointly with your spouse and an Australian credit card account.

Since early in 20XX you:

•         Have paid, and continue to pay income tax in Country A; and

•         Have contributed to, and continue to contribute to the Country A Mandatory Provident Fund

You hold an interest in an Australian superannuation fund having worked in Australia prior to moving to Country A. You do not contribute to this Australian superannuation fund.

You have not derived any income from Australian sources since departing Australia in early 20XX.

Accordingly, Australian non-resident withholding tax is not applicable to you.

Family and social connections

Since early in 20XX you have been, and continue to be, an active member of various sporting and recreation clubs in Country A.

Whilst living with you in Country A, your eldest child attended school in Country A and they participated in extra-curricular activities.

Whilst living with you in Country A, your spouse worked for a major international firm in the finance sector, and they have continued this role with the same firm after moving back to Australia in mid-20XX.

Whilst employed in Country A, your spouse paid income tax in Country A and contributed to the Country A Mandatory Provident Fund.

You hold a driver's licence in Country A.

You do not own any real estate in Australia.

You are a member of:

(a)  a major Australian sporting club (you have been a non-playing overseas member since early 20XX); and

(b)  another major Australian sporting club (you have also been an overseas member since early 20XX).

You are also a supporter/member of another Australian sporting club. Since early 20XX, you have been an overseas member and you have not attended any games.

You have not (and do not) hold or maintain any professional or occupational memberships in Australia.

Employment

Since January 20XX you have worked on a full-time basis in Country A as detailed above.

The only Australian superannuation fund of which you are a member is not established under the Superannuation Act 1990 (Cth) and you are also not an eligible employee under the Superannuation Act 1976 (Cth).

You and your spouse have never been employed by the Commonwealth of Australia.

You are not the spouse of a person who is a member of the PSS or an eligible employee in respect of the CSS.

Relevant legislative provisions

Income Tax Assessment Act 1936 Subsection 6(1)

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

Reasons for decision

Detailed reasoning

Question 1 - residency

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).

The terms resident and resident of Australia, in regard to an individual, are defined in subsection 6(1) of the ITAA 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,

•         the domicile test,

•         the 183 day test, and

•         the superannuation 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.

Where an individual does not reside in Australia according to ordinary concepts, they may still be considered to be an Australian resident if they meet the conditions of one of the other tests.

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'.

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.

In your case:

•         You moved to Country A in early 20XX with the intention of residing in Country A permanently.

•         Shortly afterwards your spouse and your eldest child joined you in Country A with the same intention.

•         Since early in 20XX your usual place of residence has been Country A where you have been living and working in the finance sector following departing Australia.

•         In early 20XX your youngest child was born in Country A.

•         You do not own any real estate in Australia.

•         You do not have any employment in Australia.

•         You hold two Australian bank accounts jointly with your spouse and an Australian credit card account.

•         You also own securities / stocks in Country A.

•         In mid-to-late 20XX you established a Country A Company which operates in the finance sector, whom you work for on a continuous permanent full-time basis.

•         You have held a working visa issued by the Country A Immigration authorities, which has let you live and work in Country A since early 20XX.

•         This type of working visa does not enable an individual to stay permanently in Country A. Your visa expires in mid- 20XX (one month before your Australian passport expires). Your visa will be extended when you obtain a new passport (which you intend to do on expiration of your current Australian issued passport).

•         You are currently not eligible to obtain permanent residency in Country A as you have not yet satisfied the relevant qualifying period, however you intend to apply for permanent residency as soon as you have satisfied the qualifying period.

•         In mid-20XX, your family moved back to Australia in furtherance of your spouse's career, and to also enable your children to access quality education.

•         However, you have since remained living and working in Country A, and you intend to do this for an indefinite period.

•         Your only absences from Country A (when travelling by yourself) between early 20XX and mid-20XX were on an ad hoc basis predominantly for short global business trips (for example meetings with clients).

•         Since mid- 20XX your only absences from Country A were on an ad hoc basis for short trips to Australia to visit your family and to assist your family with their move to Australia, and you typically work when you travel.

•         In early 20XX you returned to Australia for a short trip to visit your family.

•         However, shortly after this time the World Health Organisation (WHO) declared COVID-19 to be a global pandemic and the Australian State Government (where your family returned to live) declared a major emergency triggering a state-wide shutdown and closure of the state.

•         You were also advised at that time that the Australian Federal Government issued a travel ban in respect of leaving Australia to travel to Country A.

•         Since your arrival in Australia in early 20XX, you have been unable to return to Country A due to the COVID-19 pandemic, and as a result you have spent more than 183 days in Australia during the 20XX-XX financial year.

•         Further, due to the nature of your employment role, you require constant access to on-line resources, and you must always be accessible for your clients. As such it would be extremely difficult for you to travel under the current circumstances.

•         Whilst you have spent more than 183 days in Australia during the 20XX-XX financial year, you intend to return to Country A as soon as possible to resume living and working there on an indefinite basis.

•         You are not aware of any exemptions that you are eligible for in order to be granted permission by the relevant travel authorities to return to Country A.

•         You would not have spent more than 183 days in Australia during the 20XX-XX financial year if there was no COVID-19 pandemic.

•         You do not intend to take up residence in Australia.

•         Since early in 20XX, you have rented accommodation in Country A on a fixed long-term basis with the right to renew and you continue to rent such accommodation in Country A.

•         In mid-20XX, you moved to a one-bedroom apartment in Country A as your family returned to Australia. This is your current apartment, and you intend to continue living there indefinitely.

•         All of the leases (including the lease for the current apartment) were long-term 2-year leases.

Whilst we acknowledge that you do have some connections to Australia mainly through your family, these are outweighed by the connections you have overseas.

We also acknowledge that you are only currently residing in Australia in the short-term due to the current challenges you are facing in returning to Country A, which are outside of your control.

As such you are not residing in Australia according to the ordinary meaning of the word. Therefore, you do not meet the 'resides test' and you are a non-resident of Australia for tax purposes under this test for the relevant financial years.

However, you will be an Australian resident if you meet the conditions of any of the remaining tests.

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.

Domicile

Domicile is the place that is considered by law to be your permanent home. It is usually something more than a place of residence.

A person's domicile is generally their country of birth. This is known as a person's 'domicile of origin'. A person may acquire a domicile of choice in another country if they have the intention of making their home indefinitely in that country (section 10 of the Domicile Act 1982).

As such, in order to show that a new domicile of choice in a country outside Australia has been adopted, the person must be able prove an intention to make his or her home indefinitely in that country, and this intention needs to be demonstrated in a legal sense, for example, by way of obtaining a migration visa, becoming a permanent resident or becoming a citizen of the country concerned.

In your case you were born in Australia and you are also an Australian citizen.

As you are an Australian citizen and you have not taken any legal steps which would have proven an intention to change your Australian domicile to any other Country, you therefore have an Australian domicile.

Therefore, you will be a resident of Australia under this test unless the Commissioner considers you have established a permanent place of abode outside of Australia.

Permanent place of abode

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.

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."

A place of abode must exhibit the attributes of a place of residence or a place to live, as contrasted with the overnight, weekly or monthly accommodation of a traveller.

Paragraph 23 of Taxation Ruling IT 2650 Residency - Permanent place of abode outside Australia sets out the following factors which are used by the Commissioner in reaching a state of satisfaction as to a taxpayer's permanent place of abode:

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

(b)   whether the taxpayer intended to stay in the overseas country only temporarily and then to move on to another country or to return to Australia at some definite point in time;

(c)   whether the taxpayer has established a home (in the sense of dwelling place; a house or other shelter that is the fixed residence of a person, a family, or a household), outside Australia;

(d)   whether any residence or place of abode exists in Australia or has been abandoned because of the overseas absence;

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

(f)    the durability of association that the person has with a particular place in Australia, i.e. maintaining bank accounts in Australia, informing government departments such as the Department of Social Security that he or she is leaving permanently and that family allowance payments should be stopped, place of education of the taxpayer's children, family ties and so on.

As with the factors under the resides test, no one single factor is decisive, and the weight given to each factor depends on the individual circumstances.

In consideration of the factors above, along with your overall circumstances, the Commissioner is satisfied that you have a permanent place of abode outside of Australia based on the following:

•         You moved to Country A in early 20XX with the intention of residing in Country A permanently.

•         Shortly afterwards your spouse and eldest child joined you in Country A with the same intention.

•         Since early in 20XX your usual place of residence has been in Country A where you have been living and working in the finance sector following departing Australia.

•         You do not own any real estate in Australia.

•         You hold two Australian bank accounts jointly with your spouse and an Australian credit card account.

•         You also own securities / stocks in Country A.

•         In mid-to-late 20XX you established a Country A company which operates in the finance sector, whom you work for on a continuous permanent full-time basis.

•         You have held a working visa issued by the Country A Immigration authorities, which has let you live and work in Country A since early in 20XX.

•         This type of visa does not enable an individual to stay permanently in Country A. Your visa expires in mid-20XX (one month before your Australian passport expires). Your visa will be extended when you obtain a new passport (which you intend to do on expiration of your current Australian issued passport).

•         You are currently not eligible to obtain permanent residency in Country A as you have not yet satisfied the relevant qualifying period, however you intend to apply for permanent residency as soon as you have satisfied the qualifying period.

•         In mid-20XX, your family moved back to Australia in furtherance of your spouse's career, and to also enable your children to access quality education.

•         However, you have since remained living and working in Country A, and you intend to do this for an indefinite period.

•         Your only absences from Country A (when travelling by yourself) between early 20XX and mid- 20XX were on an ad hoc basis predominantly for short global business trips (for example meetings with clients).

•         Since mid- 20XX your only absences from Country A were on an ad hoc basis for short trips to Australia to visit your family and to assist your family with their move to Australia, and you typically work when you travel.

•         In early 20XX you returned to Australia for a short trip to visit your family.

•         However, shortly after this time the World Health Organisation (WHO) declared COVID-19 to be a global pandemic and the Australian State Government (where your family resides) declared a major emergency triggering a state-wide shutdown and closure of the state.

•         You were also advised at that time that the Australian Federal Government issued a travel ban in respect of leaving Australia to travel to Country A.

•         Since your arrival in Australia in early 20XX, you have been unable to return to Country A due to the COVID-19 pandemic, and as a result you have spent more than 183 days in Australia during the 20XX-XX financial year.

•         Further, due to the nature of your employment role, you require constant access to on-line resources and must always be accessible for your clients. As such it would be extremely difficult for you to travel under the current circumstances.

•         Whilst you have spent more than 183 days in Australia during the 20XX-XX financial year, you intend to return to Country A as soon as possible to resume living and working there on an indefinite basis.

•         You are not aware of any exemptions that you are eligible for in order to be granted permission by the relevant travel authorities to return to Country A.

•         You would not have spent more than 183 days in Australia during the 20XX-XX financial year if there was no COVID-19 pandemic.

•         You do not intend to take up residence in Australia.

•         Since early in 20XX, you have rented accommodation in Country A on a fixed long-term basis with the right to renew and you continue to rent such accommodation in Country A.

•         In mid- 20XX, you moved to a one-bedroom apartment in Country A as your family returned to Australia. This is your current apartment, and you intend to continue living there indefinitely.

•         All of the leases (including the lease for the current apartment) were long-term 2-year leases.

We acknowledge that you are only currently residing in Australia and staying with your family in the short-term due to the current challenges you are facing in returning to Country A.

Therefore, despite the fact that your domicile is Australia, the Commissioner is satisfied that you have established a permanent place of abode outside of Australia.

Therefore, you are not a resident of Australia under the domicile test of residency for the 20XX-XX income year.

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 not in Australia for more than 183 days during the 20XX-XX, 20XX-XX, 20XX-XX and 20XX-XX financial year.

As such you are not a resident under this test for those financial years.

However you were in Australia for more than 183 days during the 20XX-XX financial year. Therefore, you are a resident of Australia under this test for the 20XX-XX financial year unless the Commissioner is satisfied that your usual place of abode is outside Australia and you do not intend to take up residence in Australia.

Usual place of abode

In the context of the 183- day test, a person's usual place of abode can include both a dwelling or a country where the person usually resides. A person can have only one usual place of abode under the 183- day test.

If a person has places of abode both inside and outside Australia, then a comparison may need to be made to determine which is their usual place of abode. When comparing two places of abode of a particular person, it is necessary to examine the nature and quality of the use which the person makes of each particular place of abode. It may then be possible to determine which is the usual one, as distinct from the other or others which, while they may be places of abode, are not properly characterised as the person's usual place of abode.

Your spouse acquired a property in Australia in 20XX. You and your spouse resided in this property prior to you both departing Australia in 20XX. Your spouse still owns this property (and it was not sold by your spouse when they departed Australia in 20XX).

Since early 20XX, you have rented accommodation in Country A on a fixed long-term basis with the right to renew and you continue to rent such accommodation in Country A.

In mid- 20XX your family moved back to Australia in furtherance of your spouse's career, and to also enable your children to access quality education.

However, you have since remained living and working in Country A, and you intend to do this for an indefinite period.

Since your family moved back to Australia, you have been coming back to visit them on regular occasions, and you have only remained in Australia since early in 20XX due to the COVID-19 travel restrictions following a short visit to see your family. This is the only reason you have remained in Australia for more than 183 days in the 20XX-XX financial year.

As such you have places of abode available in both Australia and Country A (your rental accommodation in Country A and your spouse's property in Australia).

For the past number of years leading up to the 20XX-XX financial year you have split your time between Country A and Australia, always spending the vast majority of time in Country A.

Based on the fact that you usually spend longer time in Country A (and this would have also been the case in the 20XX-XX financial year had it not been for the COVID-19 travel restrictions) Country A will be taken as your usual place of abode.

Despite the conclusion that you have a usual place of abode in Country A, the Commissioner also must be satisfied that you do not intend to take up residence in Australia. As noted above, you are not an Australian resident under the resides test. You have also stated that you did not have an intention to take up residency in Australia.

Therefore, the Commissioner is satisfied that you do not intend to take up residence in Australia.

Therefore, you are not a resident of Australian for taxation purposes under this test for the 20XX-XX financial year.

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 an employee of the Commonwealth of Australia for superannuation purposes.

You are not eligible to contribute to the relevant Commonwealth super funds, nor are you the spouse of such a person.

As such you are not a resident under this test.

Your residency status

As you do not satisfy the four tests of residency you are not a resident of Australia for income tax purposes under subsection 6(1) of the ITAA 1936.

Other relevant comments

If your plans and circumstances significantly change in the 20XX-XX financial year we recommend that you seek further advice from us or apply for a private ruling on these matters for the 20XX-XX financial year.