Edited version of private advice

Authorisation Number: 1052097580546

Date of advice: 27 March 2023

Ruling

Subject: Residency

Question 1

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

Answer

Yes.

This ruling applies for the following periods:

Year ended 30 June 20XX

Year ending 30 June 20XX

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances

You were born in COUNTRY A.

You are a citizen of Australia and COUNTRY B.

You are not a permanent resident of any other country.

You have a business, which you commenced in XXXX in Australia.

You purchased your house in Australia in XXXX.

You had been living in Australia for many years before you moved to COUNTRY B on XXXX.

On leaving Australia and returning to COUNTRY B on XXXX, your property in Australia was left vacant as the move to COUNTRY B was a temporary move to look after your elderly parents during the COVID outbreak.

You were granted Citizenship of Australia on XXXX.

Your business was placed on hold in XXXX, as you were trying to keep the business going remotely during the early days of the COVID outbreak, which didn't work well and resulted in no trading income.

You returned to Australia to live and work on XXXX, and it was your intention to remain in Australia on a permanent basis.

Your spouse and children joined you in Australia on XXXX.

On XXXX, you, your spouse and children returned to COUNTRY B so your spouse could have some medical treatment which they had been waiting for. You accompanied your spouse on their return to COUNTRY B to assist in the recovery and to care for your children.

Your business was being run remotely from COUNTRY B during this time.

You, your spouse and children returned to Australia, after your spouse had recovered from surgery on XXXX.

You have a house in COUNTRY B, which remains vacant when you are not in COUNTRY B.

You have a house, car and bank account 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 1997 Section 995-1

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.

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, from the relevant period, you are a resident of Australia as follows.

Taking into account your individual circumstances, we have concluded that you are a 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 are a citizen of Australia and COUNTRY B.

•         You are not a permanent resident of any other country.

•         You have a business, which you commenced in XXXX in Australia.

•         You purchased your house in Australia in XXXX.

•         You had been living in Australia for many years before you moved to COUNTRY B on XXXX.

•         On leaving Australia and returning to COUNTRY B on XXXX, your property in Australia was left vacant as the move to COUNTRY B was a temporary move to look after your elderly parents during the COVID outbreak.

•         You were granted Citizenship of Australia on XXXX.

•         You returned to Australia to live and work on XXXX, and it was your intention to remain in Australia on a permanent basis.

•         Your spouse and children joined you in Australia on XXXX.

•         On XXXX, you, your spouse and children returned to COUNTRY B so your spouse could have some medical treatment which they had been waiting for. You accompanied your spouse on their return to COUNTRY B to assist in the recovery and to care for your children.

•         Your Australian business was being run remotely from COUNTRY B during this time.

•         You, your spouse and children returned to Australia, after your spouse had recovered from surgery on XXXX

•         You were not in Australia for more than 183 days in the 20XX income year as you were living in COUNTRY B, caring for your elderly parents and had also returned to assist your spouse following surgery. During this time, you had a permanent place of abode available to you in both Australia and COUNTRY B.

•         You intend on being in Australia for more than 183 days in the 20XX income year.

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

You are a resident of Australia for taxation purposes from the relevant date.