Edited version of private advice

Authorisation Number: 1052162346994

Date of advice: 12 September 2023

Ruling

Subject: Residency

Question 1

Are you a resident of Australia (as defined in section 6(1) of the Income Tax Assessment Act 1997) for Australian taxation purposes, per any period during the 20XX financial year?

Answer

No.

Question 2

Are you a resident of Australia (as defined in section 6(1) of the Income Tax Assessment Act 1997) for Australian taxation purposes, for any period during the 20XX financial year?

Answer

Yes.

Question 3

Are you a resident of Australia (as defined in section 6(1) of the Income Tax Assessment Act 1997) for Australian taxation purposes, for any period during the 20XX financial year?

Answer

Yes.

This ruling applies for the following periods:

Year ended 30 June 2020

Year ended 30 June 2021

Year ended 30 June 2022

The scheme commenced on:

20 March 2020

Relevant facts and circumstances

You were born in Country A on DDMM20XX.

You are a citizen of Country A and hold a current Country A. You are not a citizen of any other country and do not hold a passport issued by any other country.

You have been married to your wife for approximately XX years.

You have XX children. At the time of this application, both children are financially independent from both yourself and your wife. Both children completed university studies in 20XX and became financially independent from you and your wife in 20XX.

You, together with your wife and children, emigrated from Country A to Country B on DDMM19XX.

You currently hold a residency permit which entitled you to remain in Country B. These permits are generally renewed every two years and you have held permits to work and reside in Country B since 19XX. Your current Country B Residency Permit is not due for renewal until 20XX.

During the period DDMM19XX to DDMM20XX, you and your family resided at:

•         Country B address 1, then

•         Country B address 2

In MM20XX, you and your wife purchased a lot of land in Australia (the property) as an investment, through a property show held in Country B.

In MM20XX, you commenced employment with Company A.

You and your family continued to reside at Country B address 2 after taking your position with Company A.

Your contract with Company A includes the requirements to carry out your duties in Country B, not enter into any other employment without approval and working hours of no less than 5 days a week, Sunday to Thursday.

In 20XX, you and your wife made the decision to construct a residential home on the property. The property is held by you and your wife as joint tenants. This is the only property you own in Australia and has always been used by your wife, and your children, as their residence (until your children moved out after their secondary and tertiary education). You do not maintain any personal belongings at the property and when visiting only bring a suitcase with the items of necessity for your stay.

The water and council rate accounts for the property are in your and your wife's joint names, and the electricity and gas accounts are in your name which is a carryover from the initial house set up and registration as your wife was not employed with any references at the time. Your wife arranged for payment of these accounts up until she lost capacity in late 20XX, since then you have been making payments on her account as her power of attorney.

Your wife and your two children departed from the Country B on DDMM20XX in order to relocate to Australia.

You did not travel with your family to Australia at this time and had no intention of residing in Australia. You would periodically visit your family.

On DDMM20XX, you acquired a flat in Country B (the flat). The flat continues to be your current home, where you keep your personal belongings.

On or around DDMM20XX, your wife and one of your children started a business in Australia. It was opened to the public in MM20XX. Your wife was employed by the business since it began, until MM20XX.

Your wife obtained a lease for a property in Australia. She would stay at this property several nights during the week as it was close to the business. The lease was maintained up until MM20XX when it was terminated.

You were granted a Visa for Australia in 20XX. Previously you were granted a visa on or around 20XX, however this visa was repealed.

In early 20XX, your wife underwent extensive testing and was diagnosed with a medical condition. From diagnosis in 20XX until you arrived in MM20XX, your wife continued to reside alone, performing all household tasks and duties, and continued her duties in the business as well as maintaining the property.

Since initial diagnosis, your wife's health has continued to deteriorate quickly and significantly.

On DDMM20XX, you flew from Country B to Australia to visit your family. You did not intend to stay in Australia, and it was your intention to return to Country B. The purpose of your visit was to celebrate your wife's birthday and your wedding anniversary before returning to Country B.

You were able to enter Australia given you held a valid Visa.

You did not have any contact with the Company A team who are located in Australia. Your role and responsibilities remained the same and you were still required to work in line with the Country B Time zone.

You maintained the same responsibilities as those that were in place in Country B and remained responsible for your appointed function despite being located within Australia. Senior Management were anticipating your return to Country B. You were still able to accrue annual leave as if you remained in Country B.

Whilst you were in Australia, you maintained your flat in Country B, paying mortgage repayments. At no point were personal effects from your flat transferred to Australia and the flat was maintained exclusively for your use and enjoyment.

You maintained all of your utility payments in Country B during your time in Australia, as well as your mobile phone

You maintain motor vehicles in Country B and you obtained a Country B driver's license in MM 19XX. These vehicles were parked in the basement parking of the flat whilst you were in Australia.

You are a member of a sporting society in Country B and have been for the many years.

You had a gym membership in Country B that you terminated at the end of 20XX.

You have established social contacts in Country B and remained in contact with these friends whilst in Australia via WhatsApp and group chats.

When medical treatment is required, you attend your local general practitioner in Country B. Your employer, also provides you with medical insurance cover in Country B.

You maintain a bank account in Country B, which your employment income is deposited into.

During the period you were in Australia you did not have any Australian sourced income other than nominal interest earned in the joint bank account you had with your wife. This account funded the monthly mortgage on the property.

At this time you spent most of your time with your family at home, eating out, going to the beach, fishing, playing golf or attending a gym together with your wife and children.

You intended on leaving Australia on or around DDMM20XX, and you had a return flight to Country B booked.

On DDMM20XX the Minister for Emergency Services for Western Australia had declared a state of emergency in WA in respect of the COVID-19 pandemic.

On DDMM20XX the Federal Government places a ban on all non-residents and non-citizens entering into Australia and similarly placed limits on persons within Australia from exiting.

It was also announced that effective from DDMM20XX Western Australia would restrict its borders.

You provided statistics from 3401.1 Overseas Arrivals and Departures, Australia, which illustrated that departures from Western Australia had dramatically reduced from the period MM20XX to MM20XX.

From DDMM20XX to DDMM20XX, you continued to be employed with Company A as a Country B employee and were treated for employment purposes as if you still resided in Country B. You continued to be paid your salary in Country B currency and your monthly salary during this period continued to be paid into your Country B bank account.

You usually transfer some money each month into your joint Australian bank account with your wife. The funds were and continue to be used by your wife to assist with living expenses and to meet mortgage repayments.

You also held a credit card with an Australian bank and used this to cover your daily personal expenses in Country B and also Australia, which was closed in 20XX.

You have never worked for an Australian employer and are not a member of a complying Australian Superannuation Fund. You have never had Australian superannuation contributions made on your behalf.

On DDMM20XX, Country B announced that flights carrying passengers were not permitted (only cargo).

On or around DDMM20XX, all direct flights from Perth to Country B were suspended with limited capacity flights resuming in late MM20XX for returning Australian citizens and residents.

You were unable to demonstrate exceptional circumstances that gave you a reason to leave Australia at this time.

The WA border closures took effect on DDMM20XX under the Quarantine (Closing the Border) Directions (WA).

On DDMM20XX, only essential flights were permitted in Country B, with domestic flights being restricted.

From DDMM20XX transit flights picking up people from Country B were allowed.

From DDMM20XX all domestic flights resumed in Country B.

From DDMM20XX private aircraft were allowed to transit and transfer, subject to the passenger's receiving approval, approval was granted to Country B nationals, Country B residence or persons with special approval and the passengers had to comply with quarantine and COVID 19 test requirements.

From DDMM20XX, you met the requirements to return to Country B, seeing as you held a valid work and residency visa in Country B.

The Australian requirements to travel differed to those of Country B and whilst you met the requirements to return to Country B, travel restrictions were still in force within Australia and only those who were part of the 'priority groups' were able to travel. You were not considered part of the priority group.

Around MM20XX your wife ceased to partake in running the business with your son. Around this time, she also became unable to drive and from this point her health deteriorated to the point where she couldn't perform simple tasks such as using her mobile phone, computer or TV remote.

As of DDMM20XX, all passengers, including transit passengers, traveling through Country B were required to present a negative COVID-19 test certificate. The test must have been conducted for all passengers within 96-hours before departure, except for children under the age of 12 and passengers who have a moderate or severe disability. Departing passengers were required to present a printed test certificate.

From DDMM20XX approved airline operators were permitted to conduct flights to and from Country B subject to the passenger requirements.

From DDMM20XX, the requirement for a passenger to be a Country B national or resident was removed, but passengers still had to comply with COVID certificate, quarantine and COVID 19 testing requirements.

From DDMM20XX, the airline for return flight moved to a twice weekly schedule operating from WA to Country B.

From DDMM20XX, your airline announced that all international passengers en route to Country B must present a negative PCR test (not older than 72 hours) at boarding.

In MM20XX, you submitted a joint application with your wife to apply to leave Australia. You submitted this application because your wife's health had deteriorated to the point where she could not look after herself anymore, so you wanted to relocate your wife to Country B with you as you were more comfortable looking after your wife in a place where you had your driver's license and where your social networks and doctor resided.

Throughout 20XX your wife's health declined, she became unable to converse at length or depth, and unable to provide opinions.

On DDMM20XX you were granted exemption to travel back to Country B. Your wife received a 'not exempt to travel' notice and was unable to leave Australia.

You did not want to leave your wife in Australia and return to Country B as you did not hold Australian citizenship and therefore did not have the ability, nor meet the requirements to return to Australia while the borders were closed. By this time, your wife was legally and physically incapacitated. You and your wife do not have an adequate presence or network within Australia that you could rely on to provide your wife social support measures that would mean she could live alone. In addition, you had power of attorney and managed your wife's financial affairs.

In MM 20XX, you were granted your wife's power of attorney and enduring power of guardianship.

You applied for a Medicare account in 20XX to assist with obtaining vaccination certificates.

You and your wife received your first COVID 19 vaccination on DDMM20XX, and your second doses on DDMM20XX.

The rules in respect of international travel eased in MM20XX, from that date fully vaccinated Australian citizens and permanent residents no longer required a travel exemption to depart Australia.

From MM20XX the Australian Government removed the requirement for exemptions to leave Australia.

From MM20XX, mandatory PCR testing requirements were removed for vaccinated passengers entering Country B.

On DDMM20XX you and your wife left Australia to reside in your residence in Country B.

Since returning to Country B, the property remains empty.

You and your wife are not eligible to contribute to the PSS or the CSS Commonwealth superannuation funds.

Relevant legislative provisions

Income Tax Assessment Act 1936 Subsection 6(1)

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

Income Tax Assessment Act 1997 Section 6-5

Income Tax Assessment Act 1997 Subsection 6-5(3)

Income Tax Assessment Act 1997 Subsection 6-15(1)

Reasons for decision

Issue

Residency

Question 1

Are you a resident of Australia (as defined in section 6(1) of the Income Tax Assessment Act 1997) for Australian taxation purposes, per any period during the 20XX financial year?

Answer

No.

Question 2

Are you a resident of Australia (as defined in section 6(1) of the Income Tax Assessment Act 1997) for Australian taxation purposes, for any period during the 20XX financial year?

Answer

Yes.

Question 3

Are you a resident of Australia (as defined in section 6(1) of the Income Tax Assessment Act 1997) for Australian taxation purposes, for any period during the 20XX financial year?

Answer

Yes.

Summary

As you do not meet any of the statutory tests in relation to residency, you are not considered a resident of Australia for the period DD MM 20XX to DDMM20XX.

As you meet the resides and 183-day test, you are considered a resident of Australia for taxation purposes from DDMM20YY until your departure on DDMM20XX.

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 (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 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:

•         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

Period of physical presence in Australia

•         You were physically present in Australia from DDMM20YY until DDMM20XX.

•         Prior to arriving in Australia, you have held permits to reside and work in Country B since 19XX.

•         You, together with your wife and two children, emigrated from Country A to Country B on DDMM19XX.

Intention or purpose of visits and absences from Australia

•         On DDMM20XX, you flew from Country B to Australia to visit your family. You did not intend to stay in Australia, and it was your intention to return to Country B. The purpose of your visit was to celebrate your wife's birthday and your anniversary before returning to Country B.

•         You intended on leaving Australia on or around DDMM20XX, and you had a return flight to Country B booked.

•         On DDMM20XX the Federal Government places a ban on all non-residents and non-citizens entering into Australia and similarly placed limits on persons within Australia from exiting.

•         It was announced that effective from DDMM20XX Western Australia would restrict its borders

•         On DDMM20XX you were granted exemption to travel back to Country B. Your wife received a 'not exempt to travel' notice and was unable to leave Australia.

•         Throughout 20XX your wife's health declined, she became unable to converse at length or dept, and unable to provide opinions.

•         You did not want to leave your wife in Australia and return to Country B as you did not hold Australian citizenship and therefore did not have the ability, nor meet the requirements to return to Australia while the borders were closed. By this time, your wife was legally and physically incapacitated. You and your wife do not have an adequate presence or network within Australia that you could rely on to provide your wife social support measures that would mean she could live alone. In addition, you had power of attorney and managed your wife's financial affairs.

•         The rules in respect of international travel eased in MM20XX, from that date fully vaccinated Australian citizens and permanent residents no longer required a travel exemption to depart Australia.

•         From MM 20XX, mandatory PCR testing requirements were removed for vaccinated passengers entering Country B.

•         You applied for a Medicare account in 20XX to assist with obtaining vaccination certificates.

•         On DDMM20XX you and your wife left Australia to reside in your residence in Country B.

Behaviour while in Australia

•         You and your wife own a property in Australia which has always been used by your wife, and your children, as their principal place of residence (until your children moved out after their secondary and tertiary education). You do not maintain any personal belongings at the property and when visiting only bring a suitcase with the items of necessity for your stay.

•         During this time, you spent most of your time with your family at home, eating out, going to the beach, fishing, playing golf or attending a gym together with your wife and children.

•         You have no friends in Australia but will occasionally attend dinners with your child in law / girlfriends' parent.

•         You were residing at your property in Australia, which is jointly owned by yourself, and your wife and you continue to make mortgage repayments on this property, along with a rental property in Australia, which was being rented by your wife.

Family and business/employment ties

•         From DDMM20XX to DDMM20XX, you continued to be employed with Company A as a Country B employee and were treated for employment purposes as if you still resided in Country B. You continued to be paid your salary in the Country B and your monthly salary during this period continued to be paid into your Country B bank account.

•         You maintained the same responsibilities as those that were in place in Country B and remained responsible for your appointed function despite being located within Australia. Senior Management and shareholders were anticipating your return to Country B. You were still able to accrue annual leave as if you remained in Country B.

•         During the period you were in Australia you did not have any Australian sourced income other than nominal interest earned in the joint bank account you had with your wife, the account funded the monthly mortgage on the residential property in Australia.

•         You usually transfer some money each month into your joint Australian bank account with your wife that is with Westpac Australia. These funds were to be used by your wife to assist with living expenses and to meet mortgage repayments on the Australian property.

•         You have never worked for an Australian employer and are not a member of a complying Australian Superannuation Fund. You have never had Australian superannuation contributions made on your behalf.

Maintenance of assets

•         On DDMM20XX, you acquired a flat in Country B (the flat). The flat continues to be your current home, where you keep your personal belongings.

•         Whilst you were in Australia, you maintained your flat in Country B, paying mortgage repayments. At no point were personal effects from your flat transferred to Australia and the flat was maintained exclusively for your use and enjoyment.

•         You and your wife own a property in Australia which has always been used by your wife, and your children, as their principal place of residence (until your children moved out after their secondary and tertiary education). You do not maintain any personal belongings at the property and when visiting only bring a suitcase with the items of necessity for your stay.

•         You maintain motor vehicles in Country B and you obtained a Country B driver's license in MM 19XX. These vehicles were parked in the basement parking of the flat whilst you were in Australia.

•         You maintain a bank account in Country B, which your employment income is deposited into. You also held a credit card and used this to cover your daily personal expenses in Country B and also Australia, which you then paid for using funds from your bank account up until it was closed in 20XX.

Social and living arrangements

•         During the period DDMM19XX to DDMM20XX, you and your family resided at:

§  Country B address 1, then

§  Country B address 2

•         You and your family continued to reside at Country B address 2 after taking your position with Company A.

•         On DDMM20XX, you acquired a flat in Country B (the flat). The flat continues to be your current home, where you keep your personal belongings.

•         You maintained all of your utility payments in Country B during your time in Australia, as well as your mobile phone with Country B provider.

•         You have established social contacts in Country B and remained in contact with these friends whilst in Australia via WhatsApp and group chats.

•         When medical treatment is required, you attend your local general practitioner in Country B. Your employer, Company A, also provides you with medical insurance cover in Country B.

•         You are a member of a society in Country B and have been for the last XX years.

•         You had a gym membership in Country B that you terminated at the end of 20XX.

•         You and your wife own a property in Australia which has always been used by your wife, and your children, as their principal place of residence (until your children moved out after their secondary and tertiary education). You do not maintain any personal belongings at the property and when visiting only bring a suitcase with the items of necessity for your stay.

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

For period 20 March 2020 to 26 February 2021

•         You did not intend to stay in Australia, and it was your intention to return to Country B. The purpose of your visit was to celebrate your wife's birthday and your anniversary before returning to Country B.

•         You intended on leaving Australia on or around DDMM20XX, and you had a return flight to Country B booked.

•         On DDMM20XX the Minister for Emergency Services for Western Australia had declared a state of emergency in WA in respect of the COVID-19 pandemic.

•         On DDMM20XX from 9pm AEST the Federal Government places a ban on all non-residents and non-citizens entering into Australia and similarly placed limits on persons within Australia from exiting.

•         From DDMM20XX, you met the requirements to return to the UAE, seeing as you held a valid work and residency visa in Country B.

•         The Australian requirements to travel differed to those of Country B and whilst you met the requirements to return to Country B, travel restrictions were still in force within Australia and only those who were part of the 'priority groups' were able to travel. You were not considered part of the priority group.

•         In MM 20XX, you applied for an exemption to enable you to travel back to Country B. The exemption was granted by the Australian Federal Government on DDMM20XX.

You are not a resident of Australia under the resides test for the period DDMM20XX to DDMM20XX.

You may still be an Australian resident if you meet the conditions of one of the other tests (the domicile test, 183-day test and Commonwealth superannuation fund test).

For period 27 February 2021 to 2 April 2022

•         Whilst you were granted an exemption to depart Australia and return to Country B on DDMM20XX by the Australian Government, you made the decision to remain in Australia due to your wifes ill health and her inability to be granted permission to depart.

•         From DDMM20XX, your returning airline moved to a twice weekly schedule operating from Perth to Country B.

•         You provided statistics from 3401.1 Overseas Arrivals and Departures, Australia, which illustrated that departures from Western Australia had dramatically reduced from the period MM 20XX to MM 20XX. Whilst it is noted that departing flights did reduce, this data also suggests that flights out of Western Australia were still taking place.

•         As of DDMM20XX, all passengers, including transit passengers, traveling through Country B were required to present a negative COVID-19 test certificate. The test must have been conducted for all passengers within 96-hours before departure, except for children under the age of 12 and passengers who have a moderate or severe disability. Departing passengers were required to present a printed test certificate.

•         From DD MM 20XX, The relevant foreign office reported that a COVID-19 PCR test is carried out on entry at Country B airport. Subsequently, travellers have to go into a 10-day quarantine and after eight days, a second PCR test is carried out. Travellers entering Country B need either a negative COVID-19 PCR test or a DPI blood test no older than 48 hours. A COVID-19 PCR test must be carried out again on the fourth and eighth day of entry. People who have already been vaccinated against COVID-19 in Country B and can prove this in the relevant app are exempt from the testing requirements.

•         During your period in Australia, you spent most of your time with your family at home, eating out, going to the beach, fishing, playing golf or attending a gym together with your wife and children.

•         You were residing at your property in Australia, which is jointly owned by yourself, and your wife. You always had and continued to make mortgage repayments on this property.

•         The water and council rates for the Australian property are in the name of yourself and your wife. Your electricity and gas accounts are in your name only.

•         You did not want to leave your wife in Australia and return to Country B as you did not hold Australian citizenship and therefore did not have the ability, nor meet the requirements to return to Australia while the borders were closed. By this time, your wife was legally and physically incapacitated. You and your wife do not have an adequate presence or network within Australia that you could rely on to provide your wife social support measures that would mean she could live alone. In addition, you had power of attorney and managed your wife's financial affairs.

•         On DDMM20XX you and your wife left Australia to reside in your residence in Country B.

We consider that your circumstances are consistent with residing in Australia from DDMM20XX, when you made the conscious decision to remain in Australia, after travel restriction for yourself to return to Country B had been lifted and you were granted an exemption to depart Australia from the Australian Federal Government.

We understand that your intention at the time of the exemption being granted was to return to Country B when your wife was able to travel with you, which was some time after you personally were able to return. On balance, your circumstances demonstrate that you were residing in Australia according to the ordinary meaning of the word, from the period you were able to return to Country B.

In particular, your family ties in Australia, your intention to remain in Australia until your wife was able to travel, residing at the property that you jointly own with your wife, and your physical presence in Australia, all point to you residing in Australia.

We balanced these circumstances against your stored assets in Country B, and your Country B based employment (that you had been performing remotely whilst in Australia). Your intention was to remain in Australia for the period it took for your wife to be able to travel with you and it had always been your intention to return to the Country B when this was possible. It is not a requirement of the resides test that the intention to reside in Australia be permanent, or that all ties be severed.

While you did not intend on being Australia permanently, you had established a settled presence in Australia during the period from DDMM20XX, when you were able to return to Country B, until your departure on DDMM20XX.

You are a resident of Australia under the resides test for the period DDMM20XX to DDMM20XX.

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 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 Country A and your domicile of origin is Country A.

It is considered that you abandoned your domicile of origin in Country A and acquire a domicile of choice in Country B.

Although you were issued with a Visa for Australia in 20XX, when you travelled to Australia on DDMM20XX you did not intend to live in Australia indefinitely. It was your intention to return to Country B. The purpose of your visit was to celebrate your wife's birthday and your anniversary before returning to Country B.

Therefore, your domicile is Country B, and 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

For Period 1 July 2019 to 30 June 2020

You had not been present in Australia for 183 days or more during the 20XX income year. Therefore, you are not a resident under this test.

For period 1 July 2020 to 30 June 2022

You had been in Australia for 183 days or more in the 20XX-20XX 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 situation

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

•         On 24 June 2008, you acquired a flat in Country B (the flat). The flat continues to be your current home, where you keep your personal belongings.

•         Whilst you were in Australia, you maintained your flat in Country B, paying mortgage repayments. At no point were personal effects from your flat transferred to Australia and the flat was maintained exclusively for your use and enjoyment.

Based on your circumstances, the Commissioner is satisfied that your usual place of abode was outside Australia for the relevant income years.

Intention to take up residency

To determine whether you intend to take up residence in Australia, 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 here.

Application to your situation

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

•         On DDMM20XX, you flew from Country B to Australia to visit your family. You did not intend to stay in Australia, and it was your intention to return to Country B. The purpose of your visit was to celebrate your wife's birthday and your anniversary before returning to Country B.

•         You were able to enter Australia given you held a valid Visa.

•         You intended on leaving Australia on or around DDMM20XX, and you had a return flight to Country B booked.

•         On DDMM20XX from 9pm AEST the Federal Government places a ban on all non-residents and non-citizens entering into Australia and similarly placed limits on persons within Australia from exiting.

•         On DDMM20XX you were granted exemption to travel back to Country B. Your wife received a 'not exempt to travel' notice and was unable to leave Australia.

•         Throughout 20XX your wife's health declined, she became unable to converse at length or dept, and unable to provide opinions.

•         Whilst you were granted an exemption to depart Australia and return to Country B by the Australian Governments on DDMM20XX, you made the decision to remain in Australia due to your wife's health and her inability to be granted permission to depart.

•         During this time, you spent most of your time with your family at home, eating out, going to the beach, fishing, playing golf or attending a gym together with your wife and children.

•         You were residing at your property in Australia, which is jointly owned by yourself, and your wife and you continue to make mortgage repayments on this property, along with a rental property in Australia, which was being rented by your wife.

•         The water and council rates for the Australian property are in the name of yourself and your wife. Your electricity and gas accounts are in your name only.

•         You did not want to leave your wife in Australia and return to Country B as you did not hold Australian citizenship and therefore did not have the ability, nor meet the requirements to return to Australia while the borders were closed. By this time, your wife was legally and physically incapacitated. You and your wife do not have an adequate presence or network within Australia that you could rely on to provide your wife social support measures that would mean she could live alone. In addition, you had power of attorney and managed your wife's financial affairs.

•         On DDMM20XX you and your wife left Australia to reside in your residence in Country B.

The Commissioner is satisfied that you did not intend to take up residency in Australia during the period from DDMM20XX until your departure on DDMM20XX.

Based on the information provided, you are not a resident under this test.

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

For the period DD MM 20XX to DD MM 20XX you are not considered a resident of Australia as you do not meet any of the statutory tests in relation to residency.

From DD MM 20XX until your departure on DD MM 20XX, you are considered a resident of Australia for taxation purposes, as you meet the resides test.