Edited version of private advice

Authorisation Number: 1051864348704

Date of advice: 19 July 2021

Ruling

Subject: Residency

Question

Are you a resident of Australia for taxation purposes for the 2020 and 2021 income years?

Answer

No.

This ruling applies for the following periods:

Year ended 30 June 2020

Year ended 30 June 2021

The scheme commenced on:

1 July 2019

Relevant facts and circumstances

You were born in Country Y.

You are a citizen of Country Y.

You are a permanent resident of Australia.

You have been coming to Australia for many years on short visits for business never exceeding 183 days.

You have two companies in Country Y.

You live near these companies in Country Y.

You have been supplied with a driver and car by the companies.

You are chairman and general manager for both companies in Country Y.

The companies conduct no operations in Australia.

Your main residence is your apartment in Country Y.

Your current residence is an apartment in Country Y, which you acquired in XXXX in order to be in close proximity to the business premises of your two companies.

Your personal belongings are kept in this residence and you conduct your day-to-day activities from there.

Prior to XXXX, you have always maintained a home in Country Y and your personal belongings have remained in Country Y since.

You consider Country Y to be your home. You have never sought to break your Country Y residency.

You are married.

You and your spouse have one adult child.

Your child moved to Australia in XXXX.

You and your spouse have always lived together in Country Y.

Your spouse is ill and requires care.

Your child provides this care in Australia for them.

Your parent who is elderly is now living with your child in Australia as they have not been able to return to Country Y due to the pandemic after visiting Australia on holiday.

The rest of your relatives are in Country Y.

You come to Australia a couple of times a year for short periods.

You stay with your child in Australia and you live out of your suitcase.

You arrived in Australia on XXXXX 20XX for a short holiday of 1 month.

Due to the pandemic you were not able to return to Country Y until X XXXX 20XX.

Government regulations meant you could not leave Australia or re-enter Country Y.

You do not intend on returning to Australia in the foreseeable future.

You were in Australia for more than 183 days in the 2020 income year for the first time since commencing your travel to Australia.

You and your spouse are not eligible to contribute to the relevant Commonwealth super funds.

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 a resident of Australia. These tests are:

1. the resides test

2.     the domicile tests

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.

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. 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'.

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 the purposes of section 6(1) of the ITAA 1936. Similarly, in Subrahmanyam v Commissioner of Taxation 2002 ATC 2303, Deputy President Forgie said at paragraphs 43 and 44 that the widest meaning should be attributed to the word '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 came to Australia on XXXX 20XX. It was your intention to be in Australia for a short visit of 1 month.

You came to Australia to visit your family.

The pandemic meant that you could not return to Country Y until XXXX 20XX.

Prior to XXXX 20XX you visited Australia on short trips to see your family.

Your home is in Country Y and you have two companies in Country Y.

Based on the information provided to the commissioner you have not been residing in Australia according to ordinary concepts since arriving in Australia in 2020.

You were only in Australia for an extended period due to the pandemic and you were not able to leave Australia and re-enter Country Y due to government regulations.

You are not a resident under this test.

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 Hall (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 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 such as 2 years, would not be enough 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 Y.

You are a permanent resident of Australia.

Your domicile is Country Y as you have not taken sufficient steps to change your domicile to Australia.

Permanent place of abode

While we have determined your domicile is Country Y which means you are a non-resident under this test, we are considering the permanent place of abode aspect of the test as an alternative argument.

The expression 'place of abode' refers to a person's residence, where they live with their family and sleep at night. A person's place of abode is that person's dwelling place or the physical surroundings in which a person lives.

A permanent place of abode does not have to be 'everlasting' or 'forever'. It does not mean an abode in which a person intends to live for the rest of his or her life. An intention to return to Australia in the foreseeable future to live does not prevent the taxpayer in the meantime setting up a permanent place of abode elsewhere.

The Full Federal Court in Harding stated at 41 that it favoured the construction of the phrase 'permanent place of abode' as used at first instance in Applegate v Commissioner of Taxation [1978] 1 NSWLR 126 at 134:

"place of abode" may mean the house in which a person lives or the country, city or town in which he is for the time being to be found. I am of the view that the latter is the meaning of the expression used in s. 6(1.) of the Act.

The Full Federal Court at 40 summarised its thoughts on 'permanent place of abode' as follows:

•        the word 'place' in the context of the phrase 'outside Australia' involves a consideration of the town or country in which a person is physically residing 'permanently';

•        so long as the taxpayer has 'definitely abandoned' his or her residence in Australia, it is not necessary for the taxpayer to be permanently located at a particular house or flat in a particular town within a foreign country or for the person to live in one particular town, suburb or village within a given country;

•        the word 'place' should accordingly be read as including a reference to a country or state;

• moving between foreign countries is not the same as being permanently in one country; and

•        the words 'permanent place' require the identification of a country in which the taxpayer is living permanently.

Consequently, it is considered that the Full Federal Court in Harding provides two key considerations in determining whether a taxpayer has their permanent place of abode outside Australia. These are:

(1)   whether the taxpayer has abandoned, in a permanent way, their Australian residence, and

(2)   whether the taxpayer is living permanently in a specific country, rather than moving between foreign countries.

The Commissioner is satisfied that you have a permanent place of abode outside Australia for the following reasons:

•        You only come to Australia for short visits

•        You stay with your child when in Australia

•        You live out of a suitcase when in Australia

•        You have a home in Country Y

•        You have 2 companies in Country Y

You are not a resident under this test.

The 183-day test

Under the 183 day 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 were in Australia for more than 183 days in the 2021 income year.

You were only in Australia for more than 183 days in the 2021 income year due to the pandemic.

You came to Australia to visit with your spouse, parent and child.

You were not able to return to Country Y due to the travel restrictions in relation to the pandemic.

The Commissioner is satisfied that your usual place of abode is in Country Y and you are therefore not a resident under this test.

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

You are not a resident of Australia for the 2020 and the 2021 income years.