Edited version of private advice

Authorisation Number: 1051996517820

Date of advice: 20 June 2022

Ruling

Subject: Residency

Question:

Are you viewed as being a resident of Australia for taxation purposes from the time you arrived in Country X on Date 2 until the end of the ruling period under subsection 6(1) of the Income Tax Assessment Act 1936?

Answer:

No. The Commissioner is satisfied that your permanent place of abode during this period was Country X.

This ruling applies for the following period:

Income year ending 30 June 20XX.

The scheme commences on:

1 July 20XX.

Relevant facts and circumstances

You are a citizen of Country X and were born in Country X.

Prior to coming to Australia, you lived in Country X.

You arrived in Australia on student visa that did not allow you to stay in Australia permanently, applying for your visa to be extended on several occasions before applying for and being granted permanent residency.

Prior to the ruling period, you had travelled to Country X on several occasions for short periods before returning to Australia.

You departed Australia on Date 1, arriving in Country X on Date 2.

You do not require a visa to enter or stay in Country X given your citizenship.

You made the decision to make your home indefinitely outside of Australia at the height of the COV-19 pandemic when you had not been able to visit your family for several years.

You travelled to Country X to migrate there for X to XX years contingent on you finding employment, and if you failed to find employment you would be returning to Australia. At present, you have not found any employment in Country X.

You do not have a return airline ticket, have not returned to Australia since your departure on Date 1, and will not return to Australia during the ruling period.

You stated that your reason for going overseas when completing the Australian Immigration Outgoing passenger card was migration.

You entered the lease for a property located in Country X prior to you leaving Australia, with the lease expiring after the ruling period.

You have a bank account in Country X that you held prior to originally coming to Australia and you and your spouse have a joint bank account in Country X. You do not have any investments, or motor vehicle/s in Country X.

You do not have any employment being held for you in Australia.

Your spouse (Person A), and your child (Person B), accompanied you to Country X.

Person A and Person B are Australian citizens and Person A is not a permanent resident of Country X.

Prior to leaving for Country X, you lived at Property A, which has been left vacant after you left for Country X that you are wishing to sell.

You sold, donated, or disposed of the majority of your furniture, with the rest of your items such as clothing, books, computers and kitchen related items, being shipped over to Country X.

You have ownership interests in several investment properties in Australia from which you will receive rental income, and investments and bank accounts in Australia.

You have maintained your friends from your employment, school, church and hobby connections in Australia.

You have family in Country X and friends made in relation to your child's school.

Your spouse was employed by an Australian Government department for several years, with their superannuation being paid into a general super account.

You are not a contributing member of the Public Sector Superannuation Scheme or the Commonwealth Superannuation Scheme.

You did not contact the following prior to leaving for Country X to advise that you would be living over there:

•         Medicare to have your name removed from their records

•         Your health insurance provider to have your name removed from their records; or

•         Australian financial institutions to advise that you are a foreign resident.

You have not lodged any tax returns in any other countries during the ruling period.

You and your family will remain in Country X until the end of the ruling period.

Relevant legislative provisions

Income Tax Assessment Act 1936 Subsection 6(1)

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

Reasons for decision

Resident of Australia for taxation purposes

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, as applied 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 an individual is whether they reside in Australia according to the ordinary meaning of the word resides.

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

The resides 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'. These definitions have been highlighted in cases as being definitive observations of the meaning of resides (see Viscount LC in Levene v Commissioners of Inland Revenue [1928] AC 217 and Logan J in Stockton v Federal Commissioner of Taxation [2019] FCA 1679).

The observations contained in the case of Hafza v Director-General of Social Security (1985) 6 FCR 444 are also important:

Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place - even involuntarily: see Commissioners of Inland Revenue v Lysaght [1928] AC 234 at 248; and Keil v Keil [1947] VLR 383 - a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place - Levene v Inland Revenue Commissioners [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at 149 - together with an intention to return to that place and an attitude that that place remains " home ": see Norman v Norman (No 3) (1969) 16 FLR 231 at 235... [W]here the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as " home ", a change of intention may be decisive of the question whether residence in a particular place has been maintained.

Case law decisions have considered the following factors in relation to whether the taxpayer was a resident under the 'resides' test:

•         Physical presence

•         Intention or purpose of presence

•         Family and business/employment ties

•         Maintenance and location of assets, and

•         Social and living arrangements.

These factors are similar to those which the Commissioner has said are relevant in determining the residency status of individuals in Taxation Ruling IT 2650 Residency - Permanent place of abode outside Australia (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 each individual's circumstances.

Application to your situation

We consider that your circumstances are not consistent with residing in Australia from the time you arrived and relocated to Country X until the end of the ruling period. This is because in your situation:

•         Physical presence - You have been physically in Country X since you relocated there and continue to live there until the present time

•         Intention or purpose - Your stated intention in travelling to Country X is to migrate there with your family for five to twelve years. You travelled to Country X on a one-way ticket and will not return to Australia during the ruling period.

•         Behaviour - Your behaviour since being in Country X shows that you have settled there and reflects a degree of continuity, routine or habit that is consistent with relocating to Country X. Your behaviour supports your stated intention to live in Country X

•         Family and business/employment ties - You are seeking employment in Country X and do not have any employment position waiting for you in Australia. Your family have travelled with you to Country X. You have family members located in Country X.

•         Maintenance and location of assets - You jointly own several investment properties located in Australia that will be rented during your absence, a bank account and some investments. The house you resided in prior to leaving for Country X has been left vacant and you wish to sell it. You have taken some items to Country X, with the majority of your furniture being sold, donated, or disposed of prior to you leaving for Country X. You and your spouse have a joint bank account in Country X; and

•         Social and living arrangements - You had leased a property for you and your family to live in while in Country X prior to your departure, with the current lease ending after the ruling period. Your child is going to school in Country X.

Therefore, from the date you arrived in and relocated to Country X on Date 2 until the end of the ruling period you are viewed as being a non-resident of Australia for taxation purposes.

Domicile test

Under the domicile test, you are a resident of Australia if your domicile is in Australia unless the Commissioner is satisfied that your permanent place of abode is outside Australia.

Domicile

Whether your domicile is Australia is determined by the Domicile Act 1982 and the common law rules on domicile.

Your domicile is your domicile of origin (usually the domicile of your father at the time of your birth) unless you have acquired a domicile of choice elsewhere. To acquire a domicile of choice of a particular country you must be lawfully present there and you must hold the positive intention to make that country your home indefinitely. Your domicile continues until you acquire a different domicile. Whether your domicile has changed depends on an objective consideration of all relevant facts.

Permanent place of abode

If you have an Australian domicile, you are an Australian resident unless the Commissioner is satisfied that your permanent place of abode is outside Australia. This is a question of fact to be determined in light of all the facts and circumstances of each case.

'Permanent' does not mean everlasting or forever, but it is to be distinguished from temporary or transitory.

The courts have held that the phrase 'permanent place of abode' calls for a consideration of the town or country where a person is located. It does not extend to more than one country, or a region of the world.

The Full Federal Court in Harding v Commissioner of Taxation [2019] FCA 29 held at paragraphs 36 and 40 that key considerations in determining whether a taxpayer has his or her permanent place of abode outside Australia are:

(a)  whether the taxpayer has definitely abandoned, in a permanent way, living in Australia; and

(b)  whether the taxpayer is living permanently in a specific country.

Paragraph 23 of Taxation Ruling IT 2650 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, such as maintaining assets 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.

Application to your situation:

In your case, you were born in Country X and your domicile of origin is Country X. You are a citizen of Country X and do not require a visa to enter or stay in Country X.

You came to Australia and obtained visas to enable you to stay here and were granted permanent residency in 2004.

Based on the information provided the Commissioner is satisfied that your permanent place of abode from when you relocated to Country X until the end of the ruling period was outside Australia. This considers that:

•         you intend to permanently reside in Country X for a significant period of time, dependant on your employment over there

•         you and your family are staying in leased premises that were leased prior to your departure from Australia, with the current lease ending after the ruling period

•         your investment properties are being rented out during your absence overseas. The property you resided in prior to leaving for Country X is vacant and you wish to sell it

•         you have maintained a bank account in Australia and have a joint bank account with your spouse in Country X

•         you did not inform your bank, Medicare or health insurer that you were leaving Australia, but will advise them that you are living in Country X if you gain employment in Country X

•         you are integrating yourself socially in Country X, with family members living there, and your child attending school

•         you will not return during the ruling period.

Therefore, you are not a resident of Australia under this test for the period commencing when you arrived in and relocated to Country X on Date 2 until the end of the ruling period.

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.

Application to your situation

The ruling period is for the 20XX-XX income year. You departed Australia on Date 1 and arrived in Country X on Date 2, where you continue to stay.

Therefore, as you were not present in Australia for 183 days or more during the ruling period, you are not a resident under this test during that income year.

Superannuation Test

An individual is a resident of Australia if they are either 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 they are the spouse, or the child under 16, of such a person.

Application to your situation

Your spouse was employed by an Australian Government department, however they were not a member of the Public Sector Superannuation Scheme (PSS) or the Commonwealth Superannuation Scheme (CSS), with their superannuation being paid into a general superannuation account. Additionally, you are not a contributing member of the PSS or CSS.

Therefore, as you do not meet the relevant conditions for this test, it is not viewed that you are a resident under this test.

Conclusion

As you do not satisfy any of the four tests of residency, you are not a resident of Australia for income tax purposes for the period from Date 2 until the end of the ruling period on 30 June 20XX.