Edited version of private advice

Authorisation Number: 1052070900288

Date of advice: 15 December 2022

Ruling

Subject: Residency

Question

Are you a resident of Australia for taxation purposes from the relevant date?

Answer

Yes.

This ruling applies for the following period:

Year ended 30 June 20XX

Year ended 30 June 20XX

The scheme commences on:

1 July 20XX

Relevant facts and circumstances

You were born in Country Z.

You are a citizen of Australia and Country Z.

You are not a permanent resident of any other country.

You and your spouse moved to Country Y several years ago.

You sold most of your belongings when you moved to Country Y.

Later that same year your spouse obtained a promotion with their employer in Country Y.

Your spouse had an interview in Australia in the following year and had to update their visa for this promotion.

During this visit to Australia lock downs were put in place due to the pandemic.

Your spouse's visa interview was cancelled.

By the time your spouse had a visa approval to return to Country Y, you were close to giving birth to your child and you were not able to travel.

There were medical problems with the birth.

Your spouse continued to work remotely in Australia for their Country Y employer.

You settled the purchase of your home in Country Y.

It was your intention to return to Country Y once you were able to travel.

You obtained a visa for your child.

In the following year you made the decision not to return to Country Y and to remain in Australia.

Your spouse was able to secure a job with their employer in Australia.

You sold your home in Country Y.

You have no assets in Country Y or any other country.

You have an investment property in Australia.

Neither you nor your spouse are eligible to contribute to the PSS or the CSS super funds.

Relevant legislative provisions

Income Tax Assessment Act 1936 subsection 6(1)

Reasons for decision

For tax purposes, whether you are a resident of Australia is defined by subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936).

The definition has four tests to determine your residency for income tax purposes. These tests are:

•         the resides test

•         the domicile test

•         the 183 day test, and

•         the Commonwealth superannuation fund test.

It is sufficient for you to be a resident under one of these tests to be a resident for tax purposes.

Our interpretation of the law in respect of residency is set out in Taxation Ruling TR 2022/D2 Income tax: residency tests for individuals.

The resides test

The resides test is the primary test of tax residency for an individual. If you reside in Australia according to the ordinary meaning of the word resides, you are considered an Australian resident for tax purposes.

Some of the factors that can be used to determine whether you reside in Australia include:

•         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.

No single factor is decisive, and the weight given to each factor depends on your specific circumstances.

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

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

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

For example, you may have a domicile by origin (where you were born) or by choice (where you have changed your home with the intent of making it permanent).

Whether your permanent place of abode is outside Australia is a question of fact to be determined in light of all the facts and circumstances of each case.

Key considerations in determining whether you have your permanent place of abode outside Australia are:

•         whether you have definitely abandoned, in a permanent way, living in Australia

•         length of overseas stay

•         nature of accommodation, and

•         durability of association.

The 183-day test

Under the 183 day test, if you are present in Australia for 183 days or more during the income year, you will be a resident, unless the Commissioner is satisfied that both:

•         your usual place of abode is outside Australia, and

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

The question of usual place of abode is a question of fact and generally means the abode customarily or commonly used by you when are physically in a country.

The Commonwealth 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 circumstances

We have considered each of the statutory tests listed above in relation to your particular facts and circumstances. We conclude that, for the relevant income year, you are resident of Australia as follows.

Taking into account your individual circumstances, we have concluded that you are resident of Australia according to ordinary concepts.

We also consider that your domicile is in Australia and the Commissioner is satisfied that your permanent place of abode is not outside Australia. We considered the following factors in forming our conclusion:

•         You were previously living, and your spouse was working in Country Y

•         Your family lived with you in Country Y

•         You and your family decided to permanently live in Australia and not return to Country Y to live

•         You sold your home in Country Y

•         Your spouse has secured a position with their employer in Australia.

You were in Australia for more than 183 days and intended on staying in Australia from the relevant date.

You do not fulfil the requirements of the Commonwealth Superannuation test and are therefore not a resident under this test.

You resumed your residency status of Australia on the relevant date and became a resident of Australia for taxation purposes from this date.