Edited version of private advice

Authorisation Number: 1052233670810

Date of advice: 20 March 2024

Ruling

Subject: Residency

Question

Are you a resident of Australia for taxation purposes?

Answer

No.

This ruling applies for the following periods:

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 you are an Australian citizen.

You permanently departed Australia for Country A with your spouse in several years ago.

You and your spouse both hold and maintain permanent resident visas in Country A which grants the both of you the permanent right to work, live and vote in Country A.

You have held your permanent resident visa in Country A for several years.

You notified the relevant banks in Australia that you are a non-resident after departing.

In early 20XX, you made the decision to relocate your family to Australia due to the uncertainty and security concerns over Country A's political situation and the COVID-19 pandemic. Country A has notably endured significant political and civil upheaval as a result of geopolitical tensions and the pandemic. In particular, your children's education in Country A was severely disrupted because of COVID-19, and their schooling in Country A continued to be disrupted and subject to enduring online/remote learning even as most countries emerged from the worst of the pandemic.

Your family also faced significant challenges and disruptions to their daily lives due to the strict and frequent lockdowns that continued as Country A emerged from the pandemic.

In light of these concerns over your family's security and general well-being, you made the decision to move your family to Australia, but to personally continue your residence in Country A.

In light of your ongoing CEO/leadership position in a Country A based Company of which you hold a stake in (effective until mid- 20XX) and your directorships of other Country A based Companies as well as other professional and personal ties, it was crucial for you to continue being based and to maintain a permanent residence in Country A.

In early 20XX, you discontinued your children's schooling/enrolments in Country A and your spouse and children moved to Australia, and they are currently living in a property in Australia.

You continue to maintain an apartment in Country A which is available to you permanently at all times.

In summary, you continue to reside primarily in Country A due to your close employment/executive, economic and personal ties to Country A, and you will travel occasionally to Australia to visit your family.

You were present in Australia for a short period of time in the 20XX-XX financial year for holidays and family visits, and you also spent short periods of time (for less than 1 week in duration) in various other countries for business related trips.

You were present in Australia for a short period of time in the 20XX-XX financial year for holidays.

For the period 1 July 20XX to 30 June 20XX

On your visits to Australia during this period, you and your spouse began exploring possible options/opportunities to potentially relocate your family to Australia due to the volatile geopolitical situation in Country A and the frequent and severe COVID-19 lockdowns in Country A. Your children were young at this stage, and their schooling in Country A during this period was severely impacted by COVID-19.

In early 20XX, you and your spouse enquired about placing your children into an Australian school.

During this entire year, you continued your children's enrolment in their Country A school. Further, your large family home in Country A (the Family Home) continued as your family home, and you continued to reside in this property during your trips back to Country A.

You were present in Australia for less than 183 days in the 20XX-XX financial year for holidays, having made a few separate trips back to Australia, and you also spent a few days in Country B for business related trips.

For the period 1 July 20XX to 30 June 20XX

In early 20XX, due to the worsening geopolitical situation and COVID-19 lockdowns, you and your spouse made the decision that it would be in the best interests of your spouse and children to arrange for them to take an extended absence from Country A. At this time in early 20XX, your spouse informed the children's school in Country A of their decision and terminated their enrolment effective from this date. You also decided to put your Family Home up for rent on this date.

During this period, you made frequent trips between Country A and Australia to relocate and resettle your family in their new accommodation and schools in Australia. Importantly, you continued to return to Country A on a regular basis to maintain your senior executive roles and employment ties in Country A and to carry out your responsibilities/duties as (amongst others) the CEO of a Country A listed company. During this period, you maintained a permanent residence, various assets, and your personal possessions in Country A.

In summary, your visits to Australia for the year ended 30 June 20XX were notably longer given that you had to resettle your spouse and children in Australia, after their relocation from Country A due to the uncertainty and security concerns over Country A's political situation and the COVID-19 pandemic.

The only reason your stay in Australia during this income year exceeded 183 days was because you were relocating your spouse and children to Australia, and had to resettle your family in a new residence and in a new school in Australia.

You were present in Australia for more than 183 days in the 20XX-XX financial year, having made a several trips back to Australia to facilitate your spouse and children returning to Australia permanently, and you also spent small amounts of time in various other countries for business purposes.

For the period 1 July 20XX to current

During this period, you made several trips to Australia to visit your family whilst maintaining your senior executive, employment, and close economic ties with Country A. You continue to maintain in Country A, an apartment which is available to you at all times, which contains your principal personal possessions and relevant assets.

You have been present in Australia for less than 183 days year to date in the current financial year (20XX-XX), and you also intend to be in Australia for less than 183 days in the 20XX-XX financial year.

When completing incoming and outgoing passenger cards, you sometimes ticked the resident returning box and including an Australian address on the incoming passenger card. However, this was due to your unfamiliarity with Australia's tax residency rules along with the uncertainty over your residency status, given you had not sought professional and legal advice at that stage.

You are a Country A tax resident, and you have lodged income tax returns in Country A as a Country A tax resident.

Intention

Your intention is to continue to reside in Country A and to continue your employment and business activities in Country A for the foreseeable future, and you have no immediate or foreshadowed plans to return to Australia permanently, because of your established and successful professional career based in Country A, and current duties and responsibilities in the Country A business community, along with deep friendships in Country A.

You will continue to monitor the geopolitical situation in Country A and Country C, in order to assess when would be a safe and appropriate time for your children and spouse to re-join you/relocate back to Country A.

Family and social connections

You have a spouse, and you have X children all aged under XX years sold, who were all born in Country A.

You are a non-active member of a couple of Australian sporting clubs. However, you do not participate in sports at either club.

You and your spouse have many friends and extended family in Country A. Your children also attended school in Country A from 20XX to 20XX.

You maintain deep friendships and business partnerships in Country A. In several Country A based companies/entities which you are employed with, you participate in the board of directors.

You are an active and prominent member of the Country A business community.

You also played competitive sport in Country A, and this network forms the basis of your main social network outside of work and business partnerships.

You also have an active membership in another Country A sporting club, where you are close friends with many other club members.

You have also been a member of another Country A sporting club.

You are registered on the Country A electoral roll, and you have voted in Country A.

You continue to maintain your mobile phone contract, furniture, and personal possessions in Country A.

You have a work vehicle provided to you by a Country A company that you are a director of.

Accommodation and assets

Australia

Neither you nor your spouse own any properties in Australia in a personal capacity. You both are one of the beneficiaries of an Australian family trust that holds several properties, one of which is currently occupied by your spouse and children.

In Australia, the only assets held by you are:

•         A small boat and a car.

•         A couple of bank accounts and investments.

You have correctly informed both banks of your Country A tax resident status several years before the Ruling Period.

You hold a Medicare card and you arranged for private health insurance cover for you and your family in late 20XX.

You and your family currently hold bank accounts and cars in Australia for the usage of your spouse and children.

You own a sailboat which is registered in Australia but is still globally flagged as a Country A vessel, which enables the vessel to be sailed back to Country A.

Country A

In Country A, you own a residential property jointly with your spouse, which was the main residence for you and your family up until 20XX. This residential property is currently being rented out to a family.

Since early in 20XX when your family relocated to Australia, you have maintained a permanent residential apartment in Country A, with your personal possessions and related assets. This apartment is available to you permanently at all times, and you also contribute to all bills and utilities for that apartment, as this is rented on a joint basis with other tenants.

Since early 20XX, this apartment has been your postal address for your personal and employment purposes in Country A. All your mail in Country A (e.g., phone bills, bank statements) has since been directed and sent to this apartment. You also maintain your principal personal possessions and other assets in this apartment.

You own the following material assets in Country A:

•         A family home.

•         A few bank accounts.

•         Numerous shares in several public and private companies.

•         Bitcoin and Ethereum.

•         A couple of boats.

•         Various personal possessions.

The above-mentioned assets are of a high value.

Since you departed Australia several years ago, your mailing addresses have always been your Country A dwellings.

Currently, your apartment in Country A is your main postal address.

Occasionally from time to time in the Ruling Period, whilst relocating your family to Australia, you have had non- Country A mail directed to an Australian address.

You hold car, motorbike and boat licences in both Country A and Australia.

You have private health insurance cover in Country A.

Prior to you departing Australia for Country A several years ago, you removed yourself from the Australian electoral roll.

When you later commenced receiving failure to vote penalties from the Australian Electoral Commission (AEC), you updated your Country A postal address to an Australian address (initially one of your parent's addresses) to ensure that the fines could be collected and paid.

You later found out that the change of address led to you to being placed back onto your Australian home state electoral roll and subsequently onto the Federal electoral roll in 20XX. You subsequently called the AEC and the officer confirmed that they should have technically been taken off the electoral rolls given that you were away from Australia for over 6 years.

In early 20XX, you filed a "living overseas indefinitely form" with the AEC to ensure your permanent removal from the electoral rolls.

Income and employment

You are an expert in the finance sector.

You moved to Country A several years ago to take up employment in the finance sector. You then subsequently established your own company in Country A.

In 20XX, you along with other investors acquired a material stake in a Country A publicly listed company and built a listed regulated business within that company.

You went on to hold numerous high-level senior positions in the publicly listed Company in Country A.

You are also the responsible officer for the company.

You are also the founder and director of two other Country A-based companies. You are also a director of a not-for-profit foundation in Country A.

Your current income sources are derived entirely from Country A via employment and being a director of the various Company A Companies.

In your role as board advisor to a Country A company, you advise the board on strategic matters from technology, industry developments, through to regulatory affairs. You also oversee all matters related to the operations of the regulated business to ensure compliance with the company's licensing and overall regulatory obligations.

In one Country A company you act as a director guiding the organisation's legal and fiscal obligations, and you also direct strategy and investments.

You have remained employed on a full-time basis in Country A based roles since you relocated to Country A several years ago.

One role is ongoing, and another role is committed through to mid- 20XX. You are in the process of establishing and growing other Country A based businesses.

You are an active and prominent member of the Country A finance business community.

You also hold special regulatory certifications in the finance sector of Country A.

During your residence in Country A, you have travelled extensively around the world for work, however work visits to Australia for business purposes were rare.

You have had no employment ties in Australia since you departed for Country A several years ago.

You can attend board meetings and phone calls to perform your management duties for all companies regardless of location.

Neither you nor your spouse are 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 a spouse or 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

Section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997) defines an Australian resident for tax purposes as a person who is a resident of Australia for the purposes of the Income Tax Assessment Act 1936 (ITAA 1936).

The terms 'resident' and 'resident of Australia', as applied to an individual, are defined in subsection 6(1) of the ITAA 1936.

The definition offers four tests to ascertain whether each individual taxpayer is a resident of Australia for income tax purposes. These tests are:

•         the resides test (also referred to as the ordinary concepts test)

•         the domicile test

•         the 183-day test, and

•         the Commonwealth superannuation fund test.

The resides test is the primary test for deciding the residency status of an individual. This test considers whether an individual resides in Australia according to the ordinary meaning of the word 'resides'.

Where an individual does not reside in Australia according to ordinary concepts, they will still be an Australian resident if they meet the conditions of one of the other tests (the domicile test, 183-day test and Commonwealth superannuation fund test).

Our interpretation of the law in respect of residency is set out in Taxation Ruling TR 2023/1 Income tax: residency tests for individuals.

We have considered the statutory tests listed above in relation to your situation as follows:

The resides test

The ordinary meaning of the word 'reside' has been expressed as 'to dwell permanently or for a considerable time, to have one's settled or usual abode, to live, in or at a particular place': See Commissioner of Taxation v Miller (1946) 73 CLR 93 at 99 per Latham CJ, citing Viscount Cave LC in Levene v Inland Revenue Commissioners [1928] AC 217 at 222, citing the Oxford English Dictionary. Likewise, the Macquarie Dictionary defines 'reside' as 'to dwell permanently or for a considerable time; have one's abode for a time'.

The observations contained in the case of Hafza v Director-General of Social Security (1985) 6 FCR 444 are also important:

Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place - even involuntarily: see Commissioners of Inland Revenue v Lysaght [1928] AC 234 at 248; and Keil v Keil [1947] VLR 383 - a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place - Levene v Inland Revenue Commissioners [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at 149 - together with an intention to return to that place and an attitude that that place remains "home": see Norman v Norman (No 3) (1969) 16 FLR 231 at 235... Where the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as "home", a change of intention may be decisive of the question whether residence in a particular place has been maintained.

The Commissioner considers the following factors in relation to whether a taxpayer is a resident under the 'resides' test:

•         period of physical presence in Australia

•         intention or purpose of presence

•         behaviour while in Australia

•         family and business/employment ties

•         maintenance and location of assets

•         social and living arrangements.

It is important to note that no one single factor is decisive, and the weight given to each factor depends on each individual's circumstances.

Because the resides test is about whether an individual resides in Australia, the factors focus on the individual's connection to Australia. Having a connection with another country, or being a resident of another country, does not diminish any connection to Australia. The ordinary meaning of reside does not require an individual to have a principle or usual place of residence in Australia.

Application to your situation

You are not a resident of Australia under the resides test for the 20XX-XX and 20XX-XX income years based on the following:

Physical presence

Whilst you have spent more than 183 days in Australia in the 20XX-XX income year, this was primarily due to relocating your spouse and children to Australia and had to resettle your family in a new residence and in a new school in Australia.

In addition, you have spent less than 183 days in Australia 20XX-XX income year to date, and you also intend to be in Australia for less than 183 days in the 20XX-XX income year.

Intention or purpose of presence

Your intention is to continue to reside in Country A and to continue your employment and business activities in Country A for the foreseeable future, and you have no immediate or foreshadowed plans to return to Australia permanently, because of your established and successful professional career based in Country A, and current duties and responsibilities in the Country A finance sector, along with deep friendships in Country A.

You will continue to monitor the geopolitical situation in Country A and Country C, in order to assess when would be a safe and appropriate time for your children and spouse to re-join you/relocate back to Country A.

Behaviour whilst in Australia

Whilst you have spent more than 183 days in Australia in the 20XX-XX income year, as stated above, this was primarily due to relocating your spouse and children to Australia and had to resettle your family in a new residence and in a new school in Australia.

During this period, you made frequent trips between Country A and Australia to relocate and resettle your family in their new accommodation and schools in Australia. Importantly, you continued to return to Country A on a regular basis to maintain your senior executive roles and employment ties in Country A and to carry out your responsibilities/duties as (amongst others) as a director of a Country A listed company. During this period, you maintained a permanent residence, various assets, and your personal possessions in Country A.

In addition, the total days spent in Australia in the 20XX-XX income year was broken into several trips to Australia in total, with the longest continuous amount of time spent in any of these trips to Australia being a couple of months.

Family and business/employment ties

In early 20XX, due to the worsening geopolitical situation and COVID-19 lockdowns, you and your spouse made the decision that it would be in the best interests of your spouse and children to arrange for them to take an extended absence from Country A.

As such, in early 20XX, your spouse and children relocated to Australia permanently.

You are an expert in the finance sector.

You moved to Country A several years ago to take up employment in the finance sector. You then subsequently established your own company in Country A.

In 20XX, you along with other investors acquired a material stake in a Country A publicly listed company and built a listed regulated business within that company.

You went on to hold numerous high-level senior positions in the publicly listed Company in Country A.

You are also the responsible officer for the company.

You are also the founder and director of two other Country A-based companies. You are also a director of a not-for-profit foundation in Country A.

Your current income sources are derived entirely from Country A via employment and being a director of the various Company A Companies.

In your role as board advisor to a Country A company, you advise the board on strategic matters from technology, industry developments, through to regulatory affairs. You also oversee all matters related to the operations of the regulated business to ensure compliance with the company's licensing and overall regulatory obligations.

In one Country A company you act as a director guiding the organisation's legal and fiscal obligations, and you also direct strategy and investments.

You have remained employed on a full-time basis in Country A based roles since you relocated to Country A several years ago.

One role is ongoing, and another role is committed through to mid- 20XX. You are in the process of establishing and growing other Country A based businesses.

You are an active and prominent member of the Country A finance business community.

During your residence in Country A, you have travelled extensively around the world for work, however work visits to Australia for business purposes were rare.

You have had no employment ties in Australia since you departed for Country A several years ago.

You also hold special regulatory certifications in the finance sector of Country A.

Maintenance and location of assets

Country A

In Country A, you own a residential property jointly with your spouse, which was the main residence for you and your family up until 20XX. This residential property is currently being rented out to a family.

Your personal possessions and related assets are located in a Hong Kong apartment which you currently maintain and reside in.

You own the following material assets in Country A:

•         A family home.

•         A few bank accounts.

•         Numerous shares in several public and private companies.

•         Bitcoin and Ethereum.

•         A couple of boats.

•         Various personal possessions.

The above-mentioned assets are of a high value

Australia

Neither you nor your spouse own any properties in Australia in a personal capacity. You both are one of the beneficiaries of an Australian family trust that holds several properties, one of which is currently occupied by your spouse and children.

In Australia, the only assets held by you are:

•         A small boat and a car.

•         A couple of bank accounts and investments.

You have correctly informed both banks of your Country A tax resident status several years before the Ruling Period.

You hold a Medicare card and you arranged for private health insurance cover for you and your family in late 20XX.

You and your family currently hold bank accounts and cars in Australia for the usage of your spouse and children.

You own a sailboat which is registered in Australia but is still globally flagged as a Country A vessel, which enables the vessel to be sailed back to Country A.

You hold a Medicare card and you arranged for private health insurance cover for you and your family in late 20XX.

You and your family currently hold bank accounts and cars in Australia for the usage of your spouse and children.

Social and living arrangements

You are a non-active member of a couple of Australian sporting clubs. However, you do not participate in sports at either club.

You and your spouse have many friends and extended family in Country A. Your children also attended school in Country A from 20XX to 20XX.

You maintain deep friendships and business partnerships in Country A. In several Country A based companies/entities which you are employed with, you participate in the board of directors.

You are an active and prominent member of the Country A business community.

You also played competitive sport in Country A, and this network forms the basis of your main social network outside of work and business partnerships.

You also have an active membership in another Country A sporting club, where you are close friends with many other club members.

You have also been a member of another Country A sporting club.

You are registered on the Country A electoral roll, and you have voted in Country A.

You may still be an Australian resident if you meet the conditions of one of the other tests (the domicile test, 183-day test and Commonwealth superannuation fund test).

Domicile test

Under the domicile test, you are a resident of Australia if your domicile is in Australia unless the Commissioner is satisfied that your permanent place of abode is outside Australia.

Domicile

Whether your domicile is in Australia is determined by the Domicile Act 1982 and the common law rules on domicile.

Your domicile is your domicile of origin (usually the domicile of your father at the time of your birth) unless you have a domicile of dependence or have acquired a domicile of choice elsewhere. To acquire a domicile of choice of a particular country you must be lawfully present there and hold the positive intention to make that country your home indefinitely. Your domicile continues until you acquire a different domicile. Whether your domicile has changed depends on an objective consideration of all relevant facts.

Application to your situation

In your case, you were born in Australia and your domicile of origin is Australia. You immigrated to Country A several years ago and attained permanent residency status in Country A following this, and you have been residing permanently in Country A ever since.

As such, it is considered that you abandoned your domicile of origin in several years ago and acquired a domicile of choice in Country A.

In addition, given your intention of continuing residing in Country A for the foreseeable future, we do not consider that you have abandoned your domicile of choice in Country A which you acquired several years ago.

Therefore, your domicile is Country A, and you are not a resident of Australia under this test.

However, we will now add a discussion of permanent place of abode as an alternative argument.

Permanent place of abode

In cases where you have an Australian domicile, you are an Australian resident unless the Commissioner is satisfied that your permanent place of abode is outside Australia. This is a question of fact to be determined in light of all the facts and circumstances of each case.

'Permanent' does not mean everlasting or forever, but it is to be distinguished from temporary or transitory.

The phrase 'permanent place of abode' calls for a consideration of the physical surroundings in which you live, extending to a town or country. It does not extend to more than one country, or a region of the world.

The Full Federal Court in Harding v Commissioner of Taxation [2019] FCA 29 held at paragraphs 36 and 40 that key considerations in determining whether a taxpayer has their permanent place of abode outside Australia are:

• whether the taxpayer has definitely abandoned, in a permanent way, living in Australia
• whether the taxpayer is living in a town, city, region, or country in a permanent way.

The Commissioner considers the following factors relevant to whether a taxpayer's permanent place of abode is outside Australia:

• the intended and actual length of the taxpayer's stay in the overseas country
• whether the taxpayer intended to stay in the overseas country only temporarily and then to move on to another country or to return to Australia at some definite point in time
• whether the taxpayer has established a home (in the sense of dwelling place; a house or other shelter that is the fixed residence of a person, a family, or a household), outside Australia
• whether any residence or place of abode exists in Australia or has been abandoned because of the overseas absence
• the duration and continuity of the taxpayer's presence in the overseas country
• the durability of association that the person has with a particular place in Australia, i.e., maintaining assets in Australia, informing government departments such as the Department of Social Security that he or she is leaving permanently and that family allowance payments should be stopped, place of education of the taxpayer's children, family ties and so on.

As with the factors under the resides test, no one single factor is decisive, and the weight given to each factor depends on the individual circumstances.

Application to your situation

The Commissioner is satisfied that your permanent place of abode is outside Australia because:

•         You permanently departed Australia for Country A with your spouse several years ago.

•         Whilst you have spent more than 183 days in Australia in the 20XX-XX income year, this was primarily due to relocating your spouse and children to Australia and had to resettle your family in a new residence and in a new school in Australia.

•         In addition, you have spent less than 183 days in Australia 20XX-XX income year to date, and you also intend to be in Australia for less than 183 days in the 20XX-XX income year.

•         Despite your spouse and children relocating to Australia, your intention is to continue to reside in Country A and to continue your employment and business activities in Country A for the foreseeable future, and you have no immediate or foreshadowed plans to return to Australia permanently.

•         Since early in 20XX when your family relocated to Australia, you have maintained a permanent residence in an apartment in Hong Kong, with your personal possessions and related assets.

•         This apartment is available to you permanently at all times, and you also contribute to all bills and utilities for that apartment, as this is rented on a joint basis with other tenants.

•         You are an active and prominent member of the Country A business community.

•         You maintain deep friendships and business partnerships in Country A. In several Country A based companies/entities which you are employed with, you participate in the board of directors.

•         You own several assets in Country A which are worth a considerable value.

•         You have had no employment ties in Australia since you departed for Country A several years ago.

Therefore, you are not a resident of Australia under the domicile test.

183-day test

Where a person is present in Australia for 183 days or more during the year of income the person will be a resident, unless the Commissioner is satisfied that both:

•         the person's usual place of abode is outside Australia, and

•         the person does not intend to take up residence in Australia.

Application to your situation

You will not be present in Australia for 183 days or more during the 20XX-XX income year. Therefore, you are not a resident under this test for the 20XX-XX income year.

However, you have been in Australia for 183 days or more in the 20XX-XX income year. Therefore, you will be a resident under this test for the 20XX-XX income year, unless the Commissioner is satisfied that your usual place of abode was outside Australia, and you do not have an intention to take up residence in Australia.

Usual place of abode

In the context of the 183-day test, a person's usual place of abode is the place they usually live, and can include a dwelling or a country. A person can have only one usual place of abode under the 183-day test. However, it is also possible that a person does not have a usual place of abode. This is the case for a person who merely travels through various countries without developing any strong connections.

If a person has places of abode both inside and outside Australia, then a comparison may need to be made to determine which is their usual place of abode. When comparing two places of abode of a particular person, we will examine the nature and quality of the use which the person makes of each particular place of abode. It may then be possible to determine which is the usual one, as distinct from the other or others which, while they may be places of abode, are not properly characterised as the person's usual place of abode: Emmett J at [78] in Federal Commissioner of Taxation v Executors of the Estate of Subrahmanyam [2001] FCA 1836.

Paragraph 90 of TR 2023/1 lists the following relevant factors in considering whether your usual place of abode is outside Australia:

•         where you lived before and after your time in Australia;

•         the availability of your overseas dwelling to you (if you have one) while you were in Australia;

•         where your possessions and assets are;

•         the type of visa you have and the length of your intended stay;

•         your purpose of coming to Australia, and

•         the travel arrangements you made, including whether you departed from and returned to the same place outside Australia.

Paragraph 91 of TR 2023/1 also provides that if you come to Australia and sell your home and personal possessions in the country you came from intending to remain in Australia, it is unlikely your usual place of abode remains outside Australia. However, this needs to be considered in conjunction with the other factors outlined in paragraph 90 of this Ruling. Conversely, if you come to Australia for a certain period and have your overseas home available to you upon your return, and you do return to it, you are likely to have your usual place of abode outside Australia.

Application to your situation

The Commissioner is satisfied that your usual place of abode was outside Australia for the 2022-23 income year based in the following:

•         Since early in 20XX when your family relocated to Australia, you have maintained a permanent residence in an apartment in Country A, with your personal possessions and related assets. This apartment is available to you permanently at all times, and you also contribute to all bills and utilities for that apartment, as this is rented on a joint basis with other tenants.

•         Whilst you have made several trips back to Australia, these are only temporary in nature, and during these trips you stay with your spouse and children in an Australian property owned by an Australian Trust to which you are one of the beneficiaries. In addition, you always returned to your overseas unit in Country A following these temporary trips back to Australia.

•         Whilst you have spent more than 183 days in Australia in the 20XX-XX income year, this was primarily due to relocating your spouse and children to Australia and had to resettle your family in a new residence and in a new school in Australia.

•         Despite the additional time spent in Australia in the 20XX-XX income year, your intention is to continue to reside in Country A and to continue your employment and business activities in Country A for the foreseeable future, and you have no immediate or foreshadowed plans to return to Australia permanently.

Intention to take up residency

To determine whether you intend to take up residence in Australia, we look at evidence of relevant objective facts. 'Intend to take up residency' does not merely mean intend to stay for a long time. It means intending to live here in such a manner that you would reside here.

Application to your situation

The Commissioner is satisfied that you did not intend to take up residence in Australia for the 2022-23 income year because:

•         Despite your spouse and children relocating to Australia, your intention is to continue to reside in Country A and to continue your employment and business activities in Country A for the foreseeable future, and you have no immediate or foreshadowed plans to return to Australia permanently.

Superannuation test

An individual is a resident of Australia if they are either a member of the superannuation scheme established by deed under the Superannuation Act 1990 or an eligible employee for the purposes of the Superannuation Act 1976, or they are the spouse, or the child under 16 of such a person.

Application to your situation

You are not a member on behalf of whom contributions are being made to the Public Sector Superannuation Scheme (PSS) or the Commonwealth Superannuation Scheme (CSS) or a spouse of such a person, or a child under 16 of such a person. Therefore, you are not a resident under this test.

Conclusion

As you do not satisfy any of the four tests of residency, you are not a resident of Australia for income tax purposes for the years ended 30 June 20XX and 30 June 20XX.