Edited version of private advice

Authorisation Number: 1052219066890

Date of advice: 5 February 2024

Ruling

Subject: Residency

Question 1

Are you a resident of Australia for tax purposes?

Answer

No

Question 2

Did you cease to be a resident Australia for Australian tax purposes from the date of your departure from Australia on or about XX/MM/CCYY?

Answer

Yes

This ruling applies for the following periods:

Financial year ending 30 June 20YY

Financial year ending 30 June 20YY

The scheme commences on:

XX/MM/YYCC

Relevant facts and circumstances

You were born in Country A and have Country A citizenship.

You became a citizen of Country B in 20YY and maintain a dual citizenship.

Your spouse and adult children live in Country B.

You moved to Australia under a permanent visa for work in MM/CCYY.

Your de facto partner and child moved to Australia with you.

You became a permanent resident for tax purposes on or about MM/CCYY.

You signed a new consulting agreement on XX/MM/CCYY with an initial term with the provision for extension. You provide your consultancy services via with a company incorporated in Country C which is partly owned by you. You are currently an employee of the company.

Upon signing the consulting agreement, you decided to relocate to Country C indefinitely, where your de facto partner's family live. You do not intend to return to Australia.

You vacated the apartment you were leasing. You cancelled all utility accounts and health insurance. You sold your cars and precious metals. You cancelled your child's school enrolment and credit cards.

You departed Australia on XX/MM/CCYY and your de facto partner and child departed Australia on XX/MM/CCYY and commenced residing with family in Country C. All personal effects were either disposed of or transferred to Country C. You and your de facto partner do not have any personal effects remaining in Australia.

You established a Trust on XX/MM/CCYY to facilitate investment opportunities in Australia. The Trust acquired a property located in Australia and has engaged a construction company to build a house. You are also pursuing an investment property acquisition in Country D.

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 not a resident of Australia for financial years ending 30 June 20YY and 20YY, as follows:

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

•         You will not meet the domicile test because your domicile will not be in Australia

•         You will not meet the 183 day test because you will not be in Australia for 183 days or more during the 20YY and 20YY income year/s

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

Relevant legislative provisions

Income Tax Assessment Act 1936 subsection 6(1)