Edited version of private advice

Authorisation Number: 1052218170591

Date of advice: 1 February 2024

Ruling

Subject: Residency

Question

Are you a resident of Australia under subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936) from the XX September 20XX to XX June 20XX?

Answer

Yes.

Question

Will you continue to be a resident under subsection 6(1) of the ITAA 1936 for the 20XX Income year?

Answer

Yes.

This ruling applies for the following periods:

Year ended 30 June 20XX

Year ended 30 June 20XX

Year ending 30 June 20XX

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances

You were born in Australia and are an Australian citizen

You have lived in Australia your whole life, except when you have taken time to travel.

You do not have any children or dependants and all of your immediate family and friends live in Australia.

You were previously employed by Company A online on a full-time basis from 20XX until August 20XX. You have also done XXXXX work for this company since leaving in August 20XX.

You took extended leave from your work in September 20XX to travel overseas, with the intention to return to Australia.

You travelled for the period September 20XX - November 20XX to multiple countries, however, did not settle in one location and never stayed more than X months in each location.

You completed two small consultancy jobs whilst travelling and declared this income in your 20XX income tax return.

You met your fiancée whilst travelling in Country A in October 20XX. Your fiancée was born in Country B however, lived in Country A at the time.

You returned to Country A in March 20XX to temporarily stay with your fiancée.

You and your fiancée travelled together around Country C and Country D between August 20XX and November 20XX and did not settle in any particular location.

You and your fiancée returned to Australia on the X November 20XX with the intention to settle down together indefinitely.

You and your fiancée rented an apartment on a XX-month lease.

You have explored business opportunities since returning and your fiancée tried to secure employment.

Your fiancée was unsuccessful in securing employment in Australia and therefore returned to Country B in April 20XX to support elderly family members, with the intention to return to live in Australia in the future.

You secured a XX-month Country B holiday visa in June 20XX, this enables you to stay in Country B, however you are not allowed to gain employment during this time. You have rented an apartment with your fiancée, on a XX-month lease which can be terminated at any time.

You and your fiancée plan to marry in Country B in January 20XX and intend to return to Australia within the next X years and purchase a home here.

You did not spend 183 days in Australia in the 20XX financial year.

You spent more than 183 days in Australia in the 20XX financial year.

You are not likely to spend more than 183 days in Australia in the 20XX financial year.

Your current assets in Australia are shares, superannuation, cash in Australian bank accounts and a vintage motorbike.

You have a family discretionary trust and are the sole director of the trustee company.

You owned an investment property in Town A from 20XX-20XX.

You mail is posted to your sisters address as you currently do not have property in Australia.

You maintain your Australian mobile number.

You maintain your Australian Drivers licence.

You maintain the registration and insurance on your motorbike.

You maintain your membership with the XX XXXXX football club.

You maintain your Australian bank accounts and continue to use your Australian lawyer and accountant.

You maintain your superannuation through XXXXXX super.

You are not a contributing member of the Public Sector Superannuation Scheme (PSS) or the Commonwealth Superannuation Scheme (CSS).

You are exploring business opportunities via Australian companies in relation to XXXXX work.

You have lodged your tax returns on the basis of being an Australian resident.

You are registered on the Australian electoral role and continue to vote in elections.

You have notified your bank that you are travelling overseas.

You do not have any assets outside of Australia.

You do not have a Permanent place of abode outside of Australia.

You will be returning to Australia from X March 20XX - XX March 20XX to visit family and friends.

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 test

The 183-day test

The Commonwealth superannuation fund test

We have considered your circumstances, and conclude that you are a resident of Australia for 20XX-20XX Income years, as follows:

You are a resident of Australia according to the resides test.

You meet the domicile test because your domicile is in Australia, and the Commissioner is not satisfied that your permanent place of abode is outside Australia.

You meet the 183-day test because you were in Australia for 183 days or more during the 20XX income year, and the Commissioner is not satisfied that both:

your usual place of abode is outside Australia, and

you do not intend to take up residence in Australia.

You do not fulfill the requirements of the Commonwealth Superannuation test.

More information

For more information about residency, see Taxation Ruling TR 2023/1 Income tax: residency tests for individuals.