Edited version of private advice

Authorisation Number: 1052194347965

Date of advice: 20 November 2023

Ruling

Subject: Residency

Question

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

Answer

No.

This ruling applies for the following period:

Year ended 30 June 2015

Year ended 30 June 2016

Year ended 30 June 2017

Year ended 30 June 2018

Year ended 30 June 2019

Year ended 30 June 2020

Year ended 30 June 2021

Year ended 30 June 2022

Year ended 30 June 2023

Year ended 30 June 2024

Year ended 30 June 2025

The scheme commenced on:

1 July 2014

Relevant facts and circumstances

You were born in Country Z.

You are a citizen of both Country X and Australia.

Several years ago you departed Australia with the intention to reside permanently overseas into the foreseeable future.

You arrived in Country Y which is where you have continued to reside since then.

Your spouse joined you in Country Y.

You sold most of your household items in Australia prior to departing Australia.

You have some items stored in Australia.

Since arrival in Country Y, you have continued to work for Employer Z under an "indefinite term employment agreement".

Your spouse is not employed in any country but does reside in Country Y with you.

You have returned to Australia for holidays and to visit family and friends, but have not remained for more than a few weeks at any time since you moved to Country Z.

When you and your spouse visit Australia, you do not have a home available for you to live in. Instead, you stay at motels, Airbnbs or with extended family members in a guest room.

Since residing in Country Y, you have lived in several different residences on long term arrangements.

Upon arrival in Country Y, you had your pets flown to Country Y from Australia as you knew your arrival was long-term.

As you have resided overseas for a long period of time, some of the pets have passed away over the years, however you have welcomed new pets into your life who now live with you overseas.

Over the years, you have purchased many furnishings and fittings for your home overseas, including (and not limited to) an air conditioning unit, air fryer, bed, outdoor set, and television.

Included in your contract is a rental allowance, which is paid to you directly. There is a maximum allowance and you are required to pay the gap in rental difference yourself.

Notably, the company has not dictated where you live but instead, you have sought out and arranged all of your Country Y accommodation yourself.

You and your spouse use a permanent resident visa.

You and your spouse have Australian bank accounts, a cryptocurrency account and a trust that holds investment rental property.

For the duration that you have resided overseas, these Australian rental properties have remained leased so you have been unable to stay in them when you have visited Australia.

Assets overseas:

•         Motor vehicle

•         Household effects and appliances (television, bed, air fryer, air conditioner)

•         Bank accounts

•         stocks and cryptocurrency

•         multiple pets

Assets in Australia:

•         Australian bank accounts (treated as non-resident for tax purposes)

•         Trust investment properties (all leased)

•         Vacant investment property

You and your spouse have no social or sporting connections in Australia.

You and your spouse have friends in Country Y and visit the gym.

Your private health insurance in Australia was suspended for a period and then it lapsed completely.

You are also no longer registered with Medicare.

The taxpayer and your spouse have never been Commonwealth Government of Australia Eligible employees.

You and your spouse intend on returning to Australia in the next few years or so to retire.

You intend on building a retirement home in Australia.

The home will be ready at the end of a future year.

Relevant legislative provisions

Income Tax Assessment Act 1936 subsection 6(1)

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

Reasons for decision

For tax purposes, you are a resident of Australia if you meet at least one of the following tests. You are not a resident of Australia if you do not meet any of the tests.

•         The resides test (otherwise known as the ordinary concepts test)

•         The domicile tests

•         The 183 day test

•         The Commonwealth superannuation fund test

We have considered your circumstances, and conclude that you are not a resident of Australia for taxation purposes for the relevant period as follows:

•         You are not a resident of Australia according to the resides test.

•         You meet the domicile test because your domicile is in Australia and the Commissioner is satisfied that your permanent place of abode is outside Australia.

•         You do not meet the 183 day test because you were not in Australia for 183 days or more from when you left Australia and you do not intend on being in Australia for more than 183 days during the relevant period.

•         You do not fulfil the requirements of the Commonwealth Superannuation test.

You are not a resident of Australia for taxation purposes.