Edited version of private advice

Authorisation Number: 1052129086671

Date of advice: 19 June 2023

Ruling

Subject: Resident of Australia for taxation purposes

Question 1:

Am I a resident of Australia for taxation purposes from the date you arrived in COUNTRY X (Date 1) to the date you departed COUNTRY X (Date 2)?

Answer:

No.

Question 2:

Am I a resident of Australia for taxation purposes from the date you arrived in Australia (Date 3) to the day prior to your departure to travel to COUNTRY Z (Date 4)?

Answer:

Yes.

Question 3:

Am I a resident of Australia for taxation purposed from the date you arrived in COUNTRY Z (Date 5) to the end of the ruling period (Date 6)?

Answer:

No.

This ruling applies for the following periods:

Income year ended 30 June 20XX.

Income year ending 30 June 20XX.

The scheme commenced on:

1 July 20XX.

Relevant facts and circumstances

You were born in Australia and are a citizen of Australia.

You received an employment offer Company A and made the decision to make your home indefinitely outside of Australia in COUNTRY X when you accepted the employment offer.

Under the employment agreement your employment was for a specified period, with a probation period. Your employer would provide you accommodation and a car for the duration of your employment.

Your departure was delayed due to the COVID travel restrictions and the delay in obtaining a visa to enable you to live and work in COUNTRY X.

Your visa was issued, and you departed Australia to travel to COUNTRY X arriving on Date 1.

You did not have any set plans or intentions to return to Australia during the period of your employment in COUNTRY X due to the distance and travel time unless there was a family emergency and did not have a return ticket to Australia.

Upon your arrival in COUNTRY X, you stayed at accommodation organised by your employer, with the rent being paid directly out of your wages. You continued to live there until your departure from COUNTRY X on Date 2.

You had a bank account (which has now been closed), a car provided by your employer, membership with a local gym, an international drivers' licence and full medical coverage provided by your employer in COUNTRY X.

You took out an insurance policy to cover you for any unplanned issue while you were working in COUNTRY X.

While in COUNTRY X your social and sporting activities were minimal, similar to when you were in Australia, given the nature your employment and the location you lived in, with your normal activities being catching up with friends and spending time with your spouse.

You were paid in COUNTRY X currency that was initially paid into your Australian bank account until you had set up an account COUNTRY X.

Tax was paid to the COUNTRY X Government on your behalf by your employer.

Prior to leaving Australia, you resided at a property owned by your spouse (Person A), where you had lived for some period before your departure to COUNTRY X.

After your departure Person A packed up her property to prepare it to be rented, removing all of your personal items, donating some to charity and putting some into storage at Person A's parent's place before being moved into storage where it continues to be stored. The property was rented out after some months. Person A also sold your car.

You have the following in Australia:

•                     a jointly owned property with Person A which has been used for rental purposes, with the mortgage being paid out during the ruling period: and

•                     bank accounts to deposit rental income, for loan redraw facility, and for credit card and debit card access.

You cancelled your Professional Australian memberships prior to leaving Australia and had not maintained any social and/or sporting membership/s in Australia.

You advised the Australian bank where you have your bank account that you were a foreign resident of COUNTRY X.

Your health insurance cover was suspended.

Person A departed Australia to join you in COUNTRY X some months after you had arrived there.

While in COUNTRY X you had all mail sent via email where possible with only a small amount continuing to be sent to your father-in-law's address, which had previously occurred prior to your departure to COUNTRY X.

Your employer was in the practice of providing contracts for a specified period and you planned on rolling these contracts on an indefinite basis. Your plan was to continue to be employed by them for an indefinite period. You were offered a promotion with your employer with long term prospects at the company. However, you were living in an area where the conditions had changed due to unrest in another country.

You were offered a more senior position with Company X located in COUNTRY Z prior to your employment contract with Company A's renewal.

While you intended to stay in COUNTRY X, due to the unrest in the area, you accepted the employment offer with Company X and entered into an employment agreement for an initial period of 24 months with a probation period. There was potential to be offered a new assignment when the original contract ended. Your employer would provide you with accommodation.

You and Person A departed COUNTRY X on Date 2 to travel to Australia, arriving in Australia on Date 3.

While in Australia you stayed with Person A's father while you waited for your visa approval to travel to COUNTRY Z.

You were issued a temporary visa to allow you to stay in COUNTRY Z for a specified period.

You departed Australia on Date 5, arriving in COUNTRY Z on the same date.

You commenced your employment with Company X upon your arrival in COUNTRY Z.

Person A departed Australia during the following month to join you in COUNTRY Z.

Company X provided you with fully furnished accommodation where you and Person A have lived. You have acquired some household items.

Company X will pay for your rental for the duration of your stay in COUNTRY Z and you and Person A are moving into a larger property to enable you to have family and friends stay with your during their visits.

You opened a bank account in COUNTRY Z and have household effects and personal items there. You are provided with transport to and from work and use taxis where required when not working.

You advised the bank where you have your Australian bank account that you are a foreign resident of COUNTRY Z.

During your time off work, you attend social events with work colleagues and play golf and basketball.

You did not have any social or sporting connections in Australia during your period in COUNTRY Z.

You attempt to have all mail sent via email, receiving some personal mail at your COUNTRY Z address occasionally, such as birthday and Christmas cards.

You do not intend returning to Australia to live and work within the next five to ten years, unless it is to visit no more than once per year for one-to-two-week periods, unless there is a family emergency or event.

You departed COUNTRY Z to return to Australia for a family reunion, staying in Australia for a short period before returning to COUNTRY Z.

You are in the process of having your COUNTRY Z visa renewed for a further twelve months.

Neither you nor Person A were Commonwealth Government of Australia employees for superannuation purposes and are not eligible to contribute to the PSS or the CSS Commonwealth Super funds.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 6-5

Income Tax Assessment Act 1997 section 995-1

Income Tax Assessment Act 1936 subsection 6(1)

Reasons for decision

Question 1:

Am I a resident of Australia for taxation purposes from the date you arrived in COUNTRY X (Date 1) to the date you departed COUNTRY X (Date 2)?

Answer:

No.

Question 2:

Am I a resident of Australia for taxation purposes from the date you arrived in Australia (Date 3) to the day prior to your departure to travel to COUNTRY Z (Date 4)?

Answer:

Yes.

Question 3:

Am I a resident of Australia for taxation purposed from the date you arrived in COUNTRY Z (Date 5) to the end of the ruling period (Date 6)?

Answer:

No.

Summary

We have determined your residency status for taxation purposes during the ruling period as follows:

•                     Non-resident for the period you were in COUNTRY X, being from your arrival on Date 1 to your departure on Date 2, as you did not meet any of the residency tests for this period.

•                     Resident for the interim period in Australia between your time in COUNTRY X and COUNTRY Z, being from your arrival in Australia on Date 3 until the date prior to your departure to COUNTRY Z, being Date 5, as you met the resides test and domicile test for this period; and

•                     Non-resident for the period you were in COUNTRY Z during the ruling period, being from your arrival on Date 5 until the end of the ruling period on Date 6, as you did not meet any of the residency tests

Detailed reasoning

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,

•                     the domicile test,

•                     the 183 day test, and

•                     the superannuation 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 TR 2023/1 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:

•                     Physical presence

•                     Intention or purpose of presence

•                     Family and business/employment ties

•                     Maintenance and location of assets, and

•                     Social and living arrangements

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

Prior to departing for COUNTRY X you had resided in Australia. You arrived in COUNTRY X on Date 1 where you stayed until you returned to Australia for a short period, arriving on Date 3 and then departing for COUNTRY Z on Date 5, arriving there on the same date.

We have considered the resides test in relation to your situation as follows:

Period in Country X - arriving on Date 1 and departing on Date 2

During this period:

•                     You lived in accommodation provided by your employer for the duration of your employment, staying at the same address while you were in COUNTRY X

•                     You were in COUNTRY X to enable you to undertake your employment in accordance with your employment contract, for an initial specified period which you anticipated would be extended.

•                     You were offered a promotion with your employer with long term future prospects

•                     You obtained the relevant visa to be able to stay in COUNTRY X for the term of your employment and your intention was to remain overseas for five to ten years

•                     Person A joined you with intention to stay there for the term of your employment

•                     You had a jointly owned an investment property with Person A in Australia that was rented out while you were in COUNTRY X, and several bank accounts

•                     You had a bank account, a company car and medical coverage provided by your employer, an international drivers' licence and a gym membership in COUNTRY X; and

•                     You do not intend returning to Australia to live and work within the next five to ten years, with the expectation that you will travel to Australia to visit for short periods each year.

Your behaviour during the period you were in COUNTRY X supports and is consistent with your intention to live there for the duration of your employment contract, which would potentially would have been extended given you had been offered a promotion.

Given your limited connections to Australia and physical presence overseas in COUNTRY X, you are viewed as being a non-resident for tax purposes under the resides test from Date 1 to Date 2.

Period in Australia - arrival in Australia on Date 3 to and the date prior to your departure to COUNTRY Z, being Date 4

During this period:

•                     You were physically in Australia for the purpose of obtaining a visa to allow you to travel to COUNTRY Z to live and work, with Person A also returning to Australia to obtain a visa to enable them to join you in COUNTRY Z

•                     You stayed with Person A's father and visited friends

•                     Once you had obtained your visa you travelled to COUNTRY Z to commence your employment

•                     You continued to hold the same assets in Australia; and

•                     The accommodation, company car and medical coverage provided by your employer in COUNTRY X ended, and the bank account you held over there was closed.

While we accept that your intention was not to remain in Australia but had been for the purpose of obtaining the relevant visa to enable you to travel to COUNTRY Z to live and work, you did not have any strong ties to any other country and were physically in Australia during this period.

It cannot be viewed that you resided in any other country during this period given that you had abandoned your employment, accommodation, and lifestyle in COUNTRY X and had not established another abode outside of Australia during this period.

Nothing has been provided to support that you had any strong ties to any overseas country/countries during the period you were in Australia. Therefore, you were a resident of Australia under the resides test during this period.

Period in COUNTRY Z - arriving on Date 5 and continuing to stay there until the end of the ruling period on Date 6

During this period:

•                     You departed for COUNTRY Z after obtaining a visa to enable you to live and work there for a specified period of time, which you are currently seeking to extend

•                     Person A joined you and you are both staying in accommodation provided by Company X during your period of employment with them

•                     You have a bank account, foreign currency accounts, household effects and personal items in COUNTRY Z and continue to hold the same assets in Australia

•                     You do not have any social or sporting connections in Australia and undertake sporting activities and socialise with work colleagues in COUNTRY Z; and

•                     You do not intend returning to Australia to live and work within the next five to ten years, with the expectation that you will travel to Australia to visit for short periods each year.

Your behaviour since your arrival in COUNTRY Z supports and is consistent with your intention to live there for the period of your employment, and you have applied to have your visa extended for a further twelve months.

You and Person A have established your life in COUNTRY Z after your arrival until the present time. While you have some assets in Australia, since your arrival you have displayed behaviour consistent with someone residing in COUNTRY Z.

You were physically in COUNTRY Z and had limited connection with Australia. Therefore, you are viewed as being a non-resident for tax purposes from Date 5 to Date 6.

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.

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

In your case, you were born in Australia, you are an Australian citizen, and your domicile of origin is Australia.

You had not abandoned your domicile in Australia, nor had you actively applied for, or been issued, a visa that would allow you to remain in either COUNTRY X or COUNTRY Z indefinitely. You obtained visas that enabled you to stay in both countries so that you could work there in accordance with your employment contracts in the respective country but had not chosen to migrate to either country.

Therefore, you would be viewed as being a resident of Australia under the domicile test during the ruling period unless the Commissioner is satisfied you had established a permanent place of abode outside of Australia as considered below:

Period in COUNTRY X - arrival on Date 1 and departing on Date 2

For this period the Commissioner is satisfied that your permanent place of abode had changed and was in COUNTRY X during this period because:

•                     You and Person A had resided in accommodation provided by your employer for the duration of your time there, establishing an abode there and relocating your lives over there

•                     You did not have an abode available to you in Australia as the property you jointly owned with Person A, and Person A's property, were rented out and you did not have access to them; and

•                     Your intention had been to remain overseas for up to ten years.

Period in Australia - date of arrival on Date 3 to date prior to departure to COUNTRY Z, being Date 4

You were in Australia during this period, and nothing has been provided to support that your permanent place of abode was outside of Australia as you had left the accommodation in COUNTRY X and had not established any other abode overseas.

Therefore, the Commissioner does not accept that your permanent place of abode during this period was overseas, and as your domicile is Australia you are viewed as being a resident during this period under the domicile test.

Period in COUNTRY Z - arriving on Date 5 and continuing to stay there until the end of the ruling period on Date 6

The Commissioner is satisfied that your permanent place of abode was in COUNTRY Z during this period because:

•                     You and Person A had resided in accommodation provided by your employer since your arrival in COUNTRY Z, establishing an abode there and relocating your lives over there

•                     You did not have an abode available to you in Australia as the property you jointly owned with Person A and their property were both rented out and you did not have access to them

•                     You have integrated yourself socially in COUNTRY Z; and

•                     Your intention had been to remain overseas for up to ten years and you have applied to have your visa extended.

The 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 were not in Australia for 183 days or more during the income years covered by the ruling period. Therefore, you are not a resident of Australia under this test.

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

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

Conclusion

We have determined your residency status for taxation purposes during the ruling period as follows:

•                     Non-resident for the period you were in COUNTRY X, being from your arrival on Date 1 to your departure on Date 2, as you did not meet any of the residency tests for this period.

•                     Resident for the interim period in Australia between your time in COUNTRY X and COUNTRY Z, being from your arrival in Australia on Date 3 until the date prior to your departure to COUNTRY Z, being Date 5, as you met the resides test and domicile test for this period; and

•                     Non-resident for the period you were in COUNTRY Z during the ruling period, being from your arrival on Date 5 until the end of the ruling period on Date 6, as you did not meet any of the residency tests