Edited version of private advice

Authorisation Number: 1052234045831

Date of advice: 20 March 2024

Ruling

Subject: Residency

Question

Are you an Australian tax resident for the period from XX XXXX 20YY to XX XXXX 20YY?

Answer

No.

Under the law, meeting a single test suffices for being deemed a tax resident. In your case, you have not satisfied any of the tests. You are not a resident of Australia for tax purposes.

This ruling applies for the following periods:

Year ended XX XXXX 20YY

Year ended XX XXXX 20YY

The scheme commenced on:

XX XXXX 20YY

Relevant facts and circumstances

Person 1 was born in Country A and is a Country A citizen.

Person 2 was born in Country B and is a citizen of Country B and Country C.

In October 20YY, Person 2 moved to Australia to be with Person 1.

You possess a visa that allows for a permanent stay in Australia.

In May 20YY, Person 2 purchased a property in Australia and you began to reside together at this property with Person 2.

In October 20YY, Person 1 endured health issues due to stress attributed to personal challenges.

You made the difficult decision to relinquish shared custody of Person 1's children with their former spouse to preserve Person 1's health.

Person 1 continues to maintain their children through financial contributions.

You intended to move to Country C to reside there permanently.

You resigned from your position with your employer and incurred $XX.XX of removalist fees transferring your household effects and motor vehicle to Country C.

You moved your personal effects to Country C.

Your mail was directed to Country C.

You cancelled your Australian credit cards and transferred approximately $XX.XX from Australian bank accounts to Country C bank accounts.

You left $XX.XX in Australian bank accounts to pay an estimated tax liability.

You sold your Australian property in November 20YY.

In January 20YY, you obtained employment in Country C. You submitted an offer to purchase a property in Country C. However, this contract was voided as you resigned in February 20YY from your employment due to workplace bullying or harassment.

You signed a 12-month rental agreement in Country C.

You were residents for tax purposes in Country C.

While living in Country C your Australian Financial Institutions were aware that you were foreign residents for tax purposes.

In April 20YY, you began employment with a new employer.

In July 20YY, you established a partnership together and contracted your services to two businesses.

In August 20YY, Person 1 rolled over $XX.XX from an Australian Superfund to a Country C fund.

Person 2 was already a citizen of Country C and Person 1 began the process of emigrating but never finalised.

In December 20YY, a business terminated the contract with your partnership.

In April 20YY, you decided to move back to Australia upon your lease expiring in March 20YY.

You maintained an investment property in Australia which was leased for the entirety of your period overseas.

You moved back to Australia and now live in your Australian property.

You now intend to remain in Australia as you are running your own private business.

You are not enrolled on the Electoral Roll.

You forgot to advise Medicare of your intent to depart permanently to Country C.

You are not a member of the Public Sector Superannuation Scheme (PSS) or Commonwealth Superannuation Scheme (CSS).

Relevant legislative provisions

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

We have considered your circumstances, and conclude that you are not a resident of Australia from XX XXXX 20YY to XX XXXX 20YY, as follows:

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

•         You do not meet the domicile test because your domicile is not in Australia.

•         You do not meet the 183 day test because you were not in Australia for 183 days or more during the 20YY and 20YY income years

•         your usual place of abode is outside Australia, and

•         you do not intend to take up residence in Australia.

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

More information

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