Edited version of private advice

Authorisation Number: 1052226289345

Date of advice: 26 February 2024

Ruling

Subject: Residency

Question

Are you a non-resident for taxation purposes?

Answer

Yes.

This ruling applies for the following period:

Year ended 30 June 2023

The scheme commenced on:

1 July 2022

Relevant facts and circumstances

You were born in Australia.

You are a citizen of Australia.

You left Australia in mid-2022 and moved to Country A on a two-year visa.

However, you have submitted an application for the additional year of the visa, however it has not been finalised at present. You have your follow up appointment regarding this in early 2024, and it can take a few weeks for a decision. However, you expect no issues with this and that it will be granted.

You have not been granted permanent residency in Country A or in any other country.

You have paid the immigration health surcharge for the two-year visa, and you access the national medical system in Country A, and you have General Practitioner in Country A.

You have not returned to Australia to visit since leaving for Country A.

You have not returned to Australia in the 2022-23 financial year to visit since leaving for the Country A, however you did return to Australia for a short visit (a few weeks) from late 2023 to early 2024.

In the three years prior to moving to Country A you spent the following periods outside of Australia:

Early-to-mid 2019 - travel to Country B for a short holiday.

Mid-to-late 2019 - travel to Country C and Country D for a short holiday.

Whilst you do not currently intend on applying for permanent residency in Country A, you are committed to living and working in Country A.

Your current intention is to explore options with your Country A employer for sponsorship to allow a further extension for your visa when it expires in mid-2025.

You do not have a spouse or any dependants.

Your parents and siblings remain in Australia, and they are Australian citizens.

Your parents and one of your siblings live in your parent's home, and other sibling lives in their own property in Australia.

You advised the Australian Electoral Commission that you were moving overseas indefinitely, and you were taken off the electoral roll in late 2022.

You are a member of a gym in the Country A.

You have an Australian driver's licence.

You do not hold private health insurance in Australia.

You sold your car in Australia.

Prior to your departure from Australia, you were living with your parents from early-to-mid 2022 to mid- 2022.

You jointly own a property in Australia with one of your siblings which you have rented out, hence it is not available to you.

Regarding your Australian rental property:

•         It was first rented out in early-to-mid 2022.

•         It has been rented to unrelated parties under normal commercial lease arrangements at normal commercial rent rates.

•         It is being managed by an Australian property management agent.

•         You do not use this address as your address on any documents.

•         You and your sibling are responsible for the home loan whilst you are overseas.

•         Your mail is not being sent to this address.

You lease a property in Country A and all your mail is delivered to your Country A address.

Your lease agreement commenced mid-to-late 2022 (renewed annually) and the current lease expires in mid-to-late 2024.

You have two bank accounts in Country A.

You own furniture in Country A.

You hold cryptocurrency in Australia.

You have an Australian bank account which remains open for family related transactions i.e.for family and friends use to transfer money for birthday/Christmas gifts. Your other Australian bank account is for transferring money to your sibling for management of joint property and primarily used for transactions with housing loan lender. Apart from this you do not hold any other bank accounts or investments in Australia.

Your household effects in Australia were either sold or given to family.

You are employed by A Country A organisation, where you have been working since mid- 2022.

You are a Country A resident for taxation purposes.

However, in Country A lodgements are not required and are completed automatically.

You do not have an employment position or job being held for you in Australia.

You are not a Commonwealth of Australia Government employee for Superannuation purposes.

You are not a member of the Public Sector Superannuation Scheme (PSS) which was established under the Superannuation Act 1990.

You are not an eligible employee in respect of the Commonwealth Superannuation Scheme (CSS) which was established under the Superannuation Act 1976.

You are not the spouse or a child under 16 of a person who is a member of the PSS or an eligible employee in respect of the CSS.

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 not a resident of Australia for the 2022-23 financial year, as follows:

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

•         You do not meet the domicile test because whilst your domicile is in Australia, 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 during the 2022-23 financial year.

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