Edited version of private advice

Authorisation Number: 1052221856562

Date of advice: 14 February 2024

Ruling

Subject: Residency of Australia for taxation purposes

Question

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

Answer

No.

This ruling applies for the following periods:

Year ended 30 June 20XX

Year ending 30 June 20XX

Year ending 30 June 20XX

Year ending 30 June 20XX

Year ending 30 June 20XX

Year ending 30 June 20XX

Year ending 30 June 20XX

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances

You were born in Australia.

You are a citizen of Australia.

You are a permanent resident of Country Z.

Your spouse is a Country Z citizen and permanent resident of Australia.

Your children are dual Country Z and Australian citizens.

You have been married for a number of years.

You obtained Country Z Permanent Residency a few years ago.

You previously lived in Country Z for a number of years.

You departed Australia in a prior year to take up permanent employment with your employer in Country Y.

You obtained a Country Y long term Residence Permit.

Whilst working in Country Y, you were promoted.

You have a permanent contract with Company Z.

You have worked for Company Z for a number of years.

You intend to live in Country Y for several years.

You intend to retire in Country Z with your spouse.

You do not intend on returning to Australia.

You are eligible for a Country Z pension.

Your spouse's family live in Country Z.

You use this as your registered address in Country Z for mailing purposes.

You departed with a one-way flight (that is, you did not have a return trip to Australia booked).

You took your personal belongings with you to Country Y.

Since originally departing Australia, you have only had a limited number of days in total in Australia.

You do not carry out any of the duties of your employment when returning to Australia, and only returns for sporadic family occasions or events.

When you return to Australia, you stay in the family home that your spouse and youngest child live in.

Going forward, you expect to return to Australia once a year for a couple of weeks at a time, until such time that your youngest child completes their HSC. At that point, your spouse intends to relocate to the Country Y permanently to live with you.

You visit Country Z a couple of times a year for a couple of weeks each visit. Your spouse visits Country Z a couple of times per year.

Your spouse and youngest child live in an apartment in Australia which is in your spouse's name.

Your spouse will temporarily remain in Australia until your youngest child completes their schooling.

Your spouse works part-time in Australia.

Your eldest child is at university and lives independently.

You live in long term leased accommodation in Country Y. You signed a lease when you first relocated to Country Y and have recently renewed this lease for a few months. You intend for this home to be your permanent place of abode going forward.

You have opened a bank account in Country Y.

You have become a member of the Country Y Golf & Yacht club and a member of the Australian Business Council of Country Y.

You have purchased a motor vehicle in Country Y.

Assets

In Australia, you have an Australian Superannuation fund (retail fund), you ceased contributions into the fund when you permanently relocated to Country Y. The taxpayer has a bank account and shares held on the Australian stock exchange.

In Country Z, you have a bank account.

In Country Y, you have a bank account, brokerage account and a motor vehicle.

You also hold shares in your employer.

You have ceased your Australian Private Health Insurance policy.

You have relinquished your Australian golf club membership.

You sold your motor vehicle in Australia in a prior year.

You removed yourself from the Australian electoral roll.

You closed your Australian bank account and trading account.

Neither you nor your spouse are eligible to contribute to the PSS or the CSS super funds.

Relevant legislative provisions

Income Tax Assessment Act 1936 subsection 6(1)

Income Tax Assessment Act 1997 section 995-1

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 not a resident of Australia for tax purposes from the relevant date as follows:

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

•                     You have been living and working in Country Y

You do not intend on returning to Australia.

You are renting accommodation in Country Y.

You have taken all your belongings to Country Y.

Your spouse will join you in Country Y.

You do not meet the domicile test. Although your domicile is in Australia, the Commissioner is satisfied that your permanent place of abode is outside Australia in Country Y.

You do not meet the 183-day test.

You do not intend on being in Australia for more than 183 days in any of the financial years.

You do not fulfil the requirements of the Commonwealth superannuation fund test.

In summary, you are not a resident of Australia for tax purposes.

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