Edited version of private advice

Authorisation Number: 1052022784887

Date of advice: 5 September 2022

Ruling

Subject: Residency - international

Question

Am I a foreign resident for income tax purposes?

Answer

Yes

This ruling applies for the following periods:

Year ending 30 June 20XX

Year ending 30 June 20XX

Year ending 30 June 20XX

Year ending 30 June 20XX

The scheme commences on:

21 June 20XX

Relevant facts and circumstances

You had been planning to emigrate overseas for nearly a year and moved to XXXX on XXXX.

You anticipate being outside of Australia permanently for the foreseeable future.

You have sold your motor vehicle in Australia and do not own any Australian real estate or shares/investments

You resigned from your role at XXXX, sighting your emigration as the principal reason for your resignation.

You disposed (deregistered) all business assets of XXXX Pty Ltd, a company you were director of on XXXX.

You are currently residing at XXXX.

You have secured employment with XXXX. This role is considered employment at will, where either party can terminate the agreement by providing notice in writing. You accepted this position on XXXX and commenced on XXXX.

You have been issued a XXXX Visa which is the longest visa issuable in the XXXX (10 years) under current laws. It expires in XXXX.

You currently hold an Australian Driver's License.

You held Private Health Insurance with XXXX, which was cancelled after your departure from Australia.

You currently hold a XXXX Bank account and prior to departing Australia, also held both a XXXX and XXXX account, which were both closed prior to departing Australia.

You have some personal effects that are being stored at your parents' house in Australia, which will be sent to you once you secure your extended Visa.

Relevant legislative provisions

Income Tax Assessment Act 1936 Subsection 6(1)

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

Reasons for decision

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 (also referred to as the ordinary concepts test)

•  the domicile test

•  the 183-day test, and

•  the Commonwealth superannuation fund test.

The resides test is the primary test for deciding the residency status of an individual. This test considers whether an individual resides 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 domicile test, 183-day test and Commonwealth superannuation fund test).

Our interpretation of the law in respect of residency is set out in Taxation Ruling IT 2650 Income tax: residency - permanent place of abode and Taxation Ruling TR 98/17 Income tax: residency status of individuals entering Australia.

We have considered the statutory tests listed above in relation to your situation as follows:

The resides test

The ordinary meaning of the word 'reside' has been expressed as 'to dwell permanently or for a considerable time, to have one's settled or usual abode, to live, in or at a particular place': See Commissioner of Taxation v Miller (1946) 73 CLR 93 at 99 per Latham CJ, citing Viscount Cave LC in Levene v Inland Revenue Commissioners [1928] AC 217 at 222, citing the Oxford English Dictionary. Likewise, the Macquarie Dictionary defines 'reside' as 'to dwell permanently or for a considerable time; have one's abode for a time'.

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.

The Commissioner considers the following factors in relation to whether a taxpayer is a resident under the 'resides' test:

•         period of physical presence in Australia

•         intention or purpose of presence

•         behaviour while in Australia

•         family and business/employment ties

•         maintenance and location of assets

•         social and living arrangements.

It is important to note that no one single factor is decisive, and the weight given to each factor depends on each individual's circumstances.

Because the ordinary concepts test is whether an individual resides in Australia, the factors focus on the individual's connection to Australia. Having a connection with another country, or being a resident of another country, does not diminish any connection to Australia: Logan J in Pike v Commissioner of Taxation [2019] FCA 2185 at 57 reminds us that 'it is no part of the ordinary meaning of reside in the 1936 Act that there be a "principal" or even "usual" place of residence. ... It is important that ... "resident" not be construed and applied as if there were such adjectival qualifications.' For this reason, the test is not about dominance or exclusivity.

Application to your situation

We have taken the following into consideration when determining whether you meet the resides test:

•         You have been physically present in XXXX since XXXX.

•         Your stated purpose to live in XXXX is evidenced by you securing employment with XXXX

•         You have been issued XXX Visa which is the longest visa issuable in the XXXX (XX years) under current laws. It expires in XXXX.

•         Your intention is to reside in XXXX for the foreseeable future and your employer has provided you with ways to get a visa and you have actively engaged the team member who deals with this.

•         You abandoned your right to continuing, passive remuneration of approx. $XXXX from your business, XXXX, which was deregistered on XXXX.

•         You sold your motor vehicle prior to departing Australia and do not own any property or other investments within Australia.

•         You have maintained an Australia Driver's License and bank Account, however, did close your XXXX and XXXX bank accounts, prior to departing Australia.

•         You also held Private Health Insurance through XXXX, which was also cancelled prior to your departure.

You are not a resident of Australia under the resides test from the period 21 June 20XX.

Although the law only requires you to be considered a non-resident under one test, for completeness the other tests are also considered.

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 in 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 a domicile of dependence or have acquired a domicile of choice elsewhere. To acquire a domicile of choice of a particular country you must be lawfully present there and 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.

Application to your situation

In your case, you were born in Australia and your domicile of origin is Australia.

It is considered that you have abandon your domicile of origin in Australia and have acquired a domicile of choice in XXXX. Whilst you are not entitled to reside in the XXXX indefinitely and while living in XXXX, you have been issued with a XXXX Visa, which is the longest visa issuable in the XXXX (XX years) under the current laws and will not expire until XXXX.

Therefore, your domicile is XXXX.

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 phrase 'permanent place of abode' calls for a consideration of the physical surroundings in which you live, extending to a town or country. 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 their permanent place of abode outside Australia are:

•         whether the taxpayer has definitely abandoned, in a permanent way, living in Australia

•         whether the taxpayer is living in a town, city, region or country in a permanent way.

The Commissioner considers the following factors relevant to whether a taxpayer's permanent place of abode is outside Australia:

(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 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

We have taken the following into consideration when deciding whether your permanent place of abode is outside Australia:

-          You have been physically present in XXXX since XXXX.

-          Your stated purpose to live in XXXX is evidenced by you securing employment with XXXX.

-          You have been issued a XXXX Visa which is the longest visa issuable in the XXXX (XX years) under current laws. It expires in XXXX.

-          Your intention is to reside in XXXX for the foreseeable future and your employer has provided you with ways to get a visa and you have actively engaged the team member who deals with this.

The Commissioner is satisfied that your permanent place of abode is outside Australia.

Therefore, you are not a resident of Australia under the domicile test.

183-day test

Where a person is present in Australia for 183 days or more during the year of income the person will be a resident, unless the Commissioner is satisfied that both:

•         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

You have been in Australia for 183 days or more in the 20XX income year. Therefore, you will be a resident under this test unless the Commissioner is satisfied that your usual place of abode was outside Australia.

Usual place of abode

In the context of the 183-day test, a person's usual place of abode is the place they usually live and can include a dwelling or a country. A person can have only one usual place of abode under the 183-day test. However, it is also possible that a person does not have a usual place of abode. This is the case for a person who merely travels through various countries without developing any strong connections.

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, we will 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: Emmett J at [78] in Federal Commissioner of Taxation v Executors of the Estate of Subrahmanyam [2001] FCA 1836.

Application to your situation

We have taken the following into consideration when deciding whether your usual place of abode is outside of Australia:

-          You have been physically present in XXXX since XXXX.

-          Your stated purpose to live in XXXX is evidenced by you securing employment with XXXX

-          You have been issued a XXXX Visa which is the longest visa issuable in the XXXX (XX years) under current laws. It expires in XXXX.

-          Your intention is to reside in XXXX for the foreseeable future and your employer has provided you with ways to get a visa and you have actively engaged the team member who deals with this

Based on your circumstances, the Commission is satisfied that your usual place of abode is outside Australia from 21 June 20XX.

Intention to take up residency

To determine whether you intend to take up residence in XXXX, we look at evidence of relevant objective facts. 'Intend to take up residency' does not merely mean intend to stay for a long time. It means intending to live here in such a manner that you would reside there.

Application to your situation

We have taken the following into consideration when deciding whether you intend to take up residence in XXXX:

-          You have been physically present in XXXX since XXXX.

-          Your stated purpose to live in XXXX is evidenced by you securing employment with XXXX.

-          You have been issued a XXXX Visa which is the longest visa issuable in the XXXX (XX years) under current laws. It expires in XXXX.

-          Your intention is to reside in XXXX for the foreseeable future and your employer has provided you with five ways to get a visa and you have actively engaged the team member who deals with this

Based on your circumstances, the Commissioner is satisfied that you did intend to take up residence in XXXX from 21 June 20XX.

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

You are not a member on behalf of whom contributions are being made to the Public Sector Superannuation Scheme (PSS) or the Commonwealth Superannuation Scheme (CSS) or a spouse of such a person, or a child under 16 of such a person. Therefore, you are not a resident under this test.

Conclusion

You satisfy the resides test of residency and so are a foreign resident for income tax purposes from 21 June 20XX.