Edited version of private advice

Authorisation Number: 1051833477434

Date of advice:

Ruling

Subject: Residency of Australia for taxation purposes

Question

Are you a resident of Australia for taxation purposes?

Answer

Yes.

This ruling applies for the following periods:

Year ended 30 June 2020

Year ending 30 June 2021

The scheme commences on:

1 July 2019

Relevant facts and circumstances

You are a resident of Country Z and permanent resident of Australian.

You arrived in Australia on early 20XX.

You hold a specific visa.

You were originally leaving Australia early in the year but choose to move your departure date a number of times. The last flight was then cancelled by the airline.

You are staying at your child's main residence.

You own residential rental properties in Australia.

You have invested in a restaurant in Australia.

You are a beneficiary of an Australian family discretionary trust.

You have not applied for permission to leave Australia.

You intend to apply once the border reopens and the pandemic is under control.

You intend to get the Covid-19 vaccine prior to potentially leaving Australia next year.

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, if you are a foreign resident, your assessable income includes only income derived from an Australian source (subsection 6-5(3) of the ITAA 1997).

The terms resident and resident of Australia, regarding 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 aresident of Australia. These tests are:

1.    the resides test

2.    the domicile test

3.    the 183-day test

4.    the superannuation tests

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 a resident of Australia for tax purposes if they meet the conditions of one of the other three tests.

1. The resides test

The resides test considers whether an individual is residing in Australia according to the ordinary meaning of the word 'reside'. As the word 'reside' is not defined in Australian taxation law, it takes its ordinary meaning for the purposes of subsection 6(1) of the ITAA 1936.

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

In considering the definition of 'reside', the High Court of Australia, in Federal Commissioner of Taxation v Miller (1946) 73 CLR 93 at page 99-100, per Latham CJ, noted the term 'reside' should be given a wide meaning for thepurposes of section 6(1) of the ITAA 1936. Similarly, in Subrahmanyam v Commissioner of Taxation 2002 ATC2303, Deputy President Forgie said at paragraphs 43 and 44 that the widest meaning should be attributed to theword 'reside'.

The question of whether an individual 'resides' in a country is a question of fact and degree and not of law. In deciding this question, the courts have consistently referred to and considered the following factors as being relevant:

      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 with Australia compared to the foreign country concerned; and

viii.        maintenance of a place of abode.

The weight given to each factor varies with individual circumstances and no single factor is necessarily decisive. In Shand v Federal Commissioner of Taxation 2003 ATC 2080, the Tribunal stated (at 35):

Questions of residence, domicile, permanent place of abode, have frequently been found by the courts and

tribunals to be difficult to assess on a factual level and not easy to define in concrete legal terms.

You have regularly visited Australia over a number of years.

You came to Australia in early 20XX.

You are a permanent resident of Australia.

You live in a house in Australia that is the main residence of your child.

You have Australian income from businesses and are a beneficiary of a family trust.

You intend to remain in Australia for at least a number of years.

Based on the information provided to the Commissioner you are maintaining a continuity of association and mode of life with Australia indicative of a resident residing here.

You are a resident under this test.

2. The domicile test

If a person's domicile is Australia, they will be an Australian resident unless the Commissioner is satisfied, they have a permanent place of abode outside of Australia. In order to show that a new domicile of choice in a country outside of Australia has been adopted, the person must be able to prove an intention to make his or her home indefinitely in that country.

The concept of Domicile was discussed in the Marriage of (1980) 5 Fam LR 662:

A person may abandon his domicile of origin and acquire a domicile of choice but in order to establish a change

of domicile there must be clear evidence of an intention to abandon the domicile of origin and to make a new

permanent home in the country to which the person has removed. In my view a person cannot be said to

acquire a new domicile until there has been a firm intention of establishing a permanent residence in another

country and also the confirmation of that intention by actual residence in that country.

Declarations as to intention are rightly regarded in determining the question of a change of domicile, but they

must be examined by considering the person to whom, the purposes for which, and the circumstances in which

they are made and they must further be fortified and carried into effect by conduct and action consistent with the

declared expression:

The Commissioner's view on how a domicile of choice may be acquired can be found in Taxation Ruling IT 2650

Income Tax: Residency - permanent place of abode outside Australia, at paragraph 21:

In order to show that a new domicile of choice in a country outside Australia has been adopted, the person must

be able to prove an intention to make his or her home indefinitely in that country e.g., through having obtained a

migration visa. A working visa, even for a substantial period of time such as 2 years, would not be sufficient

evidence of an intention to acquire a new domicile of choice.

Ross v Ross [1930] AC 1 at 6-7 per Lord Buckmaster... Where the court finds that at a relevant point of time

there is a conflict between the actual conduct of the party concerned and the verbal expression of his intention

doubtless the court will in most cases prefer the act to the word - as an ancient proverb puts it: "what you do

speaks so loudly that I cannot hear what you say."

Further, in Fremlin v Fremlin (1913) 16 CLR 212; [1913] HCA 25 (Fremlin v Fremlin) Per Barton J:

In Winans v. Attorney-General, Lord Halsbury L.C. said:-"Now the law is plain, that where a domicile of origin

is proved it lies upon the person who asserts a change of domicile to establish it, and it is necessary to prove

that the person who is alleged to have changed his domicile had a fixed and determined purpose to make the

place of his new domicile his permanent home." In the much older case of Udny v. Udny Lord Westbury said: -

"Domicile of choice is a conclusion or inference which the law derives from the fact of a man fixing voluntarily

his sole or chief residence in a particular place, with an intention of continuing to reside there for an unlimited

time. This is a description of the circumstances which create or constitute a domicile, and not a definition of the

term. There must be a residence freely chosen, and not prescribed or dictated by any external necessity, such

as the duties of office, the demands of creditors, or the relief from illness; and it must be residence fixed not for

a limited period or particular purpose, but general and indefinite in its future contemplation. It is true that

residence originally temporary, or intended for a limited period, may afterwards become general and unlimited,

and in such a case so soon as the change of purpose, or animus manendi, can be inferred the fact of domicile

is established." Lord Curriehill in the case of Donaldson v. M'Clure says: -"To abandon one domicile for

another means something far more than a mere change of residence. It imports an intention not only to

relinquish those peculiar rights, privileges and immunities which the law and constitution of the domicile confer

on the denizens of the country in their domestic relations, in their business transactions, in their political and

municipal status, and in the daily affairs of common life, but also the laws by which the succession to property is

regulated after death. The abandonment or change of a domicile is therefore a proceeding of a very serious

nature, and an intention to make such an abandonment requires to be proved by satisfactory evidence." Lord

Halsbury, in Marchioness of Huntly v. Gaskell, expressed strong approval of Lord Curriehill's judgment, quoting

this passage.

Your domicile of origin is Country Z.

You are a Country Z resident.

You do not intend on being in Australia indefinitely. Your domicile would therefore remain Country Z.

Therefore, as your domicile is Country Z, you are not a resident under this test.

3. The 183-day test

Under the 183 days test, a person is a resident of Australia if they are actually physically present in Australia for more than 183 days in an income year unless the Commissioner is satisfied that their usual place of abode is outside of Australia and they have no intention of taking up residence here.

You have been in Australia for more than 183 days since you arrived Australia.

You intend to be in Australia for at least two years in total.

You have been living in the main residence of your child.

The Commissioner is not satisfied that your usual place of abode is outside Australia.

You are a resident under this test.

4. The superannuation tests

This test covers Commonwealth government employees - members of the Commonwealth superannuation funds (as well as their spouses and children under 16 years of age).

A person is a resident under this test if they are:

•         a member of the superannuation scheme established by deed under the Superannuation Act 1990; or

•         an eligible employee for the purposes of the Superannuation Act 1976; or

•         the spouse, or a child under 16, of a person covered by either of the above.

You are not a resident under this test.

Your residency status

Although you have maintained your domicile in Country Z, your mode of life and ongoing associations with Australia indicate that you are currently residing in Australia.

Therefore, you are a resident of Australia for taxation purposes for the period you are in Australia.