Edited version of private advice

Authorisation Number: 1052220888482

Date of advice: 13 February 2024

Ruling

Subject: Residency

Question

Are you a resident of Australia for taxation purposes in the 20XX-XX and 20XX-XX income years?

Answer

Yes.

This ruling applies for the following periods:

Year ending 30 June 20XX

Year ending 30 June 20XX

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances

You are a citizen of Country X and were born in Country X.

You have lived in Australia since 20XX.

Your spouse (Person A) is a citizen of Australia and was born in Australia.

On XX/XX/20XX, you and Person A and your children departed Australia to travel to Country X, arriving on the same date.

You did not require a visa to travel to Country X as you are a Country X national.

You intend to return to Australia to live around XX/XX/20XX.

You do not have return plane tickets as you flew to Country X on standby and anticipate that you will do the same in relation to your return flight to Australia.

You will stay in Country X for the duration of your time overseas when you and your immediate family will visit your family, travel, and share culture and traditions in Country X with your children.

You and your family initially stayed with your parents after your arrival in Country X.

From XX/XX/20XX, you and your family are staying in a rental apartment that you have rented for X months. You can move out and cancel the contract at any time, with no penalty if you give X months' notice in advance.

Your family assisted you with household effects when you moved into the rented apartment, such as providing beds, storage units and kitchen dishes. You are renting white goods for a X month period.

You and your family have only taken clothes with you to Country X.

You and Person A each have inactive bank accounts in Country X that were emptied when you travelled to Australia in 20XX. You have a credit card which you have kept since you moved to Australia, and you have used this card when visiting Country X on previous occasions.

Prior to leaving Australia, you and your family lived at a property (the Property) that is jointly owned by you and Person A and is mortgaged.

The Property was rented shortly after you departed to travel to Country X for X months. You will receive rental income while the Property is rented that will assist with mortgage repayments. You and your family will be returning to the Property when you return from Country X.

You and Person A have the following assets in Australia:

•                     Jointly owned cars

•                     The Property

•                     Household furniture that has been put into storage

•                     You and Person A each have a superannuation account; and

•                     Joint bank accounts.

You and your family have the following connections with Australia:

•                     You have your in-laws, friends, colleagues, and sporting connections. You have taken leave without pay for an extra month after you expect to return to Australia, however you can return to your employment earlier if you wish to.

•                     Person A has their entire extended family, friends, colleagues, sporting team and gardening community. Person A is has taken twelve months leave without pay from their employment position.

•                     Your children have relatives, friends, and sporting connections. They attend school in Australia, with their places being on hold for strictly X months.

You and your family will have family connections in Country X, however, will not have any sporting connections.

Neither you nor Person A are Commonwealth Government of Australia employees for superannuation purposes.

You notified the two banks where you hold the joint accounts that you would be overseas for X months.

You and Person A did not notify Medicare that you and your family were going overseas as your employer pays health insurance on your family's behalf. You are in the process of completing paperwork to pause your membership for X months.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 995-1

Income Tax Assessment Act 1936 subsection 6(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

Income year ending 30 June 20XX

•                     You are a resident of Australia according to the resides test due to you retaining your continuity of association with Australia while you are in Country X because of the location of the majority of your assets, employment and family members, with no intention to leave Australia on a permanent basis. The Property will continue being your 'home' while you are in Country X, to which you will return to live after your trip to Country X.

•                     You do not meet the domicile test as you are not an Australian citizen and although you are a permanent resident of Australia, there is currently insufficient evidence available to determine if you have abandoned your domicile of origin in Country X and obtained a domicile of choice in Australia.

•                     You meet the 183-day test because you were in Australia for 183 days or more during this income year, being from the start of the income year until you departed to travel to Country X during the following year. Based on your circumstances, the Commissioner is not satisfied that your usual place of abode is outside Australia given the period of time you will be in Country X, and you will return to live in Australia upon your return from Country X; and

•                     You do not fulfill the requirements of the Commonwealth Superannuation test and therefore do not meet this test.

Year ending 30 June 20XX

•                     You are a resident of Australia according to the resides test due to you retaining your continuity of association with Australia with no intention to leave Australia on a permanent basis as outlined above. Your 'home' in Australia remains your home to which you will return after your X month trip to Country X.

•                     You do not meet the domicile test as you are not an Australian citizen and although you are a permanent resident of Australia, there is currently insufficient evidence available to determine if you have abandoned your domicile of origin in Country X and obtained a domicile of choice in Australia.

•                     You will not meet the 183-day test because you will not be in Australia for 183 days or more during this income year, only being in Australia from when you return to Australia after your trip to Country X until the end of the ruling period; and

•                     You do not fulfill the requirements of the Commonwealth Superannuation test and therefore do not meet this test.

Conclusion

You have met at least one of the residency tests to be a resident of Australia for taxation purposes in both income years considered in this ruling. Therefore, you are a resident of Australia for taxation purposes for the period covered by this ruling.