Edited version of private advice

Authorisation Number: 1052117213897

Date of advice: 12 May 2023

Ruling

Subject: Residency

Question

Am I a foreign resident for taxation purposes from XX/XX/XXXX?

Answer

No.

Having considered your circumstances and relevant factors the Commissioner is not satisfied that are a foreign resident under the ordinary resides, domicile tests and under the 183-day test for the XXXX and XXXX income years.

This ruling applies for the following periods:

XX/XX/XXXX to XX/XX/XXXX

XX/XX/XXXX to XX/XX/XXXX

The scheme commenced on:

XX/XX/XXXX

Relevant facts and circumstances

Family and accommodation

You were born in Country A.

You are a citizen of Country A.

You, your spouse and child arrived in Australia from Country A in XX/XXXX.

You were granted Australian citizenship on XX/XX/XXXX.

You are tenant in common with your spouse of an Australian property.

You left Australia for Country A on XX/XX/XXXX to undertake a X-year contract (renewable every X-years thereafter).

Your family has not accompanied you to Country A.

Your family has remained in the family home in Australia and have travelled to Country A on one occasion (XX/XX/XXXX to XX/XX/XXXX).

When living in Country A you reside with your parents.

You physically and financially contribute to the Country A residence.

Your spouse earns an income in Australia.

Employment

Neither you nor your spouse have been employed by the Commonwealth of Australia.

You do not have a job being held for you in Australia.

You were offered an employment contract in Country A from XX/XX/XXXX for an initial period of X-years.

The contract is renewable every X-years thereafter.

Clause X.X of your contract identifies Country A as your primary place of work.

You are required to travel to other countries for work purposes, but this is only temporary.

Personal and economic ties

You maintain a Country A drivers' licence.

You maintain a bank account in Country A, which your salary is paid into.

You maintain a bank account in Australia, to assist with you family with expenses.

You are a tenant in common with your spouse to a property situated in Australia.

You have a motor vehicle in Australia.

You continue to hold private health insurance cover in Australia to cover yourself and your family.

You have maintained club membership for social and sports activities in Country A.

You have obtained a Country A-based doctor and dentist.

Travel during the Country A contract

XXXX/XXXX financial year

You departed Australia for Country A on XX/XX/XXXX to commence your work contract.

You departed Country A for Australia on XX/XX/XXXX where you returned home to your family.

You departed Australia for Country A on XX/XX/XXXX for work purposes.

You departed Country A for Australia on XX/XX/XXXX where you returned home to your family.

You departed Australia for Country A on XX/XX/XXXX for work purposes.

You departed Country A for Australia on XX/XX/XXXX where you returned home to your family.

XXXX/XXXX financial year

You departed Australia for Country A on XX/XX/XXXX for work purposes.

You departed Country A for Country B on XX/XX/XXXX for work purposes.

You departed Country B for Country A on XX/XX/XXXX for work purposes.

You departed Country A for Australia on XX/XX/XXXX where you returned home to your family.

You departed Australia for Country A on XX/XX/XXXX for work purposes.

You departed Country A for Country C on XX/XX/XXXX for work purposes.

You departed Country C for Country A on XX/XX/XXXX for work purposes.

You departed Country A for Australia on XX/XX/XXXX where you returned home to your family.

You departed Australia for Country A on XX/XX/XXXX for work purposes.

You departed Country A for Australia on XX/XX/XXXX where you returned home to your family.

You departed Australia for Country A on XX/XX/XXXX for work purposes.

You departed Country A for Country D on XX/XX/XXXX for work purposes.

You departed Country D for Country A on XX/XX/XXXX for work purposes.

You departed Country A for Australia on XX/XX/XXXX where you returned home to your family.

You departed Australia for Country A on XX/XX/XXXX for work purposes.

You departed Country A for Country E on XX/XX/XXXX for work purposes.

You departed Country E for Country A on XX/XX/XXXX for work purposes.

You departed Country A for Australia on XX/XX/XXXX where you returned home to your family.

You departed Australia for Country A on XX/XX/XXXX for work purposes.

You departed Country A for Australia on XX/XX/XXXX where you returned home to your family.

Relevant legislative provisions

Income Tax Assessment Act 1936 subsection 6(1)

Income tax Assessment Act 1997 section 995-1

Reasons for decision

Overview of the law

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 Draft Taxation Ruling TR 2022/D2 Income tax: residency tests for individuals.

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 circumstances

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

•      Physical presence: upon leaving Australia for Country A on XX/XX/XXXX, you have returned to Australia numerous times to be with your family. In the financial year ending XXXX you spent a total of X days out of X days in Australia. In the financial year ending XXXX (as of XX/XX/XXXX) you have spent a total of X days out of X days in Australia. It is evident that you have spent a significant amount of the XXXX/XXXX and XXXX/XXXX financial years in Australia.

•      Behaviour: you advise that your presence in Australia has been due to Covid restrictions impacting your travel. It is noted that on the document you supplied dated the XX/XX/XXXX, that travel was allowed where the traveller was fully vaccinated, though they were required to have a negative pre-departure test 2 days prior and were not subject to tests on arrival or stay-home notices.

•      Family: your spouse and child live in Australia, and you return to Australia frequently to be with them. You expect your wife and child to remain in Australian until your child completes schooling at the end of XXXX. Your parents and in-laws reside in Country A. It is evident that you have stronger immediate family ties to Australia than with Country A.

•      Business or economic: on XX/XX/XXXX you took up an employment contract in Country A for a period of X years which can be extended every X-years thereafter. You plan to continue extending your contract until at least the end of XXXX. It is your intention, in accepting the employment contract, to remain working in Country A until at least XXXX.

•      Assets: Your assets in Australia are your family home, a motor vehicle, private health insurance for yourself and your family and a bank account. In Country A your assets are your personal affects you took with you from Australia. You have also opened a bank account and a phone account in Country A. It is evident that you have a higher value of assets in Australia than Country A which is consistent with someone who is still residing in Australia.

•      Social and living: While in Australia you reside in your family home. While in Country A you reside with your parents and maintain membership for social and sports activities.

You are a resident of Australia under the resides test for the period XX/XX/XXXX to XX/XX/XXXX.

Although the law only requires you to be considered a 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 of 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 circumstances

In your case, you were born in Country A and your domicile of origin is Country A. You immigrated to Australia on XX/XX/XXXX and became an Australian citizen on XX/XX/XXXX.

It is considered that you abandoned your domicile of origin in Country A and acquired a domicile of choice in Australia. You obtained permanent residency/ citizenship in Australia.

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 circumstances

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

(a)    you intend on staying in Country A until the end of XXXX.

(b)    you intend on returning to Australia to spend time with your immediate family. Your work does require travel outside of Country A, but this is only temporary.

(c)    you have established a fixed residence in Country A, by staying with your parents in Country A.

(d)    you have a fixed residence in Australia. This residence has not been abandoned as your family still reside there and you frequently return there.

(e)    in the financial year ending XXXX you spent a total of X days out of X days in Australia. In the financial year ending X (as of XX/XX/XXXX) you have spent a total of X days out of X days in Australia. The length of time spent in Country A since taking up the contract ranges from X days to X days (where arrival and departure days are calculated as time spent in Country A). The length of time spent in Australia since taking up the contract ranges from X days to X days.

(f)     you have maintained your residence and a motor vehicle in Australia. Your spouse and child remain living in Australia, with your child is being educated in Australia.

The Commissioner is not satisfied that your permanent place of abode is outside Australia.

Therefore, you are 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 circumstances

You have been in Australia for 183 days or more in the XXXX and XXXX income years. Therefore, you will be a resident under this test unless the Commissioner is satisfied that your usual place of abode was outside Australia, and you do not have an intention to take up residence in 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 circumstances

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

•      You were born in Country A.

•      You are a Country A citizen.

•      You, your spouse and child arrived in Australia in XX/XXXX.

•      You obtained Australian citizenship on the XX/XX/XXXX.

•      You are a tenant in common with your spouse of an Australian property.

•      You left Australia for Country A on XX/XX/XXXX to undertake a X-year contract (renewable every X-years thereafter).

•      Your family did not travel with you to Country A.

•      You family has remained in the family home in Australia and have travelled to Country A on one occasion.

•      When living in Country A you reside with your parents.

•      Your spouse earns an income in Australia.

•      Your child is educated in Australia, expected to complete schooling at the end of XXXX.

•      You maintain a Country A drivers' licence.

•      You maintain a Country A bank account, which your salary is paid into.

•      You maintain an Australian bank account, to assist with your family expenses.

•      You have a motor vehicle in Australia.

•      You continue to hold private health insurance in Australia to cover yourself and your family.

•      You have maintained club membership for social and sports activities in Country A.

•      You have obtained a Country A -based doctor and dentist.

•      In the financial year ending XXXX you spent a total of X days out of X days in Australia.

•      In the financial year ending XXXX (until XX/XX/XXXX) you have spent a total of X days out of X days in Australia. The length of time spent in Country A since taking up the contract ranges from X days to X days (where arrival and departure days are calculated as time spent in Country A). The length of time spent in Australia since taking up the contract ranges from X days to X days.

•      You intend on staying in Country A until the end of XXXX.

Based on your circumstances, the Commissioner is not satisfied that your usual place of abode was outside Australia for the relevant income years.

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.

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, domicile test and 183-day tests of residency and so are a resident of Australia for income tax purposes for the years ended 30 June XXXX and XXXX.