Edited version of private advice

Authorisation Number: 1052235530317

Date of advice: 10 April 2024

Ruling

Subject: Residency

Issues

Question

Is the Taxpayer a resident of Australia for the purposes of subsection 6(1) of the Income Tax Assessment Act 1936, for the income year ending 30 June XXXX?

Answer

No. The Taxpayer is not a resident of Australia for income tax purposes for the XXXX income year.

This ruling applies for the following periods:

1 July XXXX to 30 June XXXX

Relevant facts and circumstances

Generally

The Taxpayer was born on XXXX in Australia.

The Taxpayer lived in Australia until XXXX, when they moved to Country A.

Family

The Taxpayer married their spouse in XXXX.

They have one child who was born on XXXX.

The Taxpayer's spouse and child moved to Country A with them in XXXX.

The Taxpayer has siblings living in Australia: their parent passed away XXXX.

The Taxpayer's extended family also live in Australia.

Move to Country A

On XXXX, the Taxpayer moved to Country A on a visa.

The Taxpayer was accompanied by their spouse and child on visas.

The Country A visas of the Taxpayer, their spouse and child were originally valid until XXXX. The visas were continually renewed until XXXX when all members of the family were granted Indefinite Leave to Remain in Country A.

The Taxpayer, their spouse and child live in an apartment in Country A.

The Taxpayer and their spouse signed a three-year lease in respect of the apartment and pre-paid the entire rent for the period. The Taxpayer and their family moved in on XXXX.

The Taxpayer has since bought the apartment via a company structure. The family continues to live at this address and has no intention of moving from it whilst they live in the UK.

The Taxpayer intends to remain in Country A for the foreseeable future while their spouse pursues business opportunities in the region.

Australian assets and associations

Upon their departure in XXXX, the Taxpayer undertook an extensive number of actions to end their association with Australia, including those set out below.

The Taxpayer had been a Company Secretary and Public Officer of Company A in Australia. They resigned from this position upon their move to Country A, replaced by an individual who ordinarily resides in Australia.

The Taxpayer had also been the sole director of Company A. While they continue to be a director of that company, two Australian resident directors were appointed ensuring compliance with the Corporations Act 2001.

The Taxpayer and their spouse had maintained a Self-Managed Superannuation Fund (the Fund). As a result of their move, the Fund's assets were transferred to an APRA regulated fund and the Fund was wound up.

The Taxpayer's name was removed from the electoral roll for their electorate.

The Taxpayer cancelled their Medicare registration and their medical insurance when they departed Australia.

The Taxpayer advised their GP and medical specialists to remove them as a patient.

Australia Post was notified that all mail addressed to the Taxpayer's home be redirected to a post office box which is emptied twice a week by a professional services firm. Important mail is shipped to the Taxpayer in Country A; unimportant mail is marked 'Moved Overseas' and returned to sender.

The Taxpayer advised service providers to liaise with a professional services firm on all Australian-based assets.

The Taxpayer's child attended their last day of school in Australia on XXXX. The school, was notified that the family was moving overseas.

Upon moving to Country A, the Taxpayer disposed of the following properties:

•        X; and

•        X.

The former family home in Australia, which is owned by the Taxpayer's spouse, was not immediately placed on the market due to unfavourable market conditions in the wake of the Global Financial Crisis. Instead, a series of refurbishment actions were taken to prepare it for sale. The property remains in 'caretaker mode'

Country A assets and associations

As set out above, the Taxpayer and their family live in the apartment

The Taxpayer and their family have no intention of living elsewhere whilst they continue to live in Country A.

The Taxpayer's spouse invested funds to confirm their Country A residency as part of the visa requirements.

The Taxpayer's spouse appointed a Country A broker to manage the investment portfolio for their investment visa.

The Taxpayer's spouse works as a consultant to corporations based in Continent A.

The Taxpayer's spouse has made significant investments in Continent A corporations through a mixture of loans and equity holdings.

The Taxpayer has opened bank accounts with various banks in Country A since arriving in Country A.

The Taxpayer obtained credit cards from various banks in Country A.

The Taxpayer registered as a voter in Country A.

The Taxpayer applied for and received confirmation of their entry into Country A's taxation system; they appointed a tax agent and lodge Country A tax returns.

The Taxpayer, their spouse and their child took out private health insurance starting XXXX. This cover has since been cancelled.

The Taxpayer attends a gym in Country A.

The Taxpayer entered into engagements with a Country A accountant and lawyer.

The Taxpayer applied for and received their Country A driver's licence.

The Taxpayer registered with and has used the services of a doctor in Country A.

The Taxpayer and their family became patients of a Country A dental practice.

The Taxpayer's child attended a Country A school. They have subsequently completed their schooling.

The Taxpayer is a patron of a Country A Foundation and the family attend events of this charity.

Visits

After departing Australia on XXXX, the Taxpayer made one visit to Australia in the XXXX income year, visiting from XXXX to XXXX.

In the income year ending 30 June XXXX, the Taxpayer accompanied their spouse on two visits to Australia. Once for a few days to manage their tax affairs; and once to spend Christmas with their family.

In the income year ending 30 June XXXX, the Taxpayer visited Australia four times: approximately one week in XXXX to celebrate their child's birthday; one week in December XXXX to spend Christmas with their family; and 17 days in XXXX for weddings of close friends.

In subsequent financial years, the Taxpayer's pattern of visits has varied - they visited Australia 1- 5 times per year, and these visits have been of varying durations.

In the financial year ending 30 June XXXX, the Taxpayer visited Australia three times, staying a total of 25 nights: 5 nights from XXXX to XXXX, 16 nights from XXXX to XXXX, and 4 nights from XXXX to XXXX. The first two visits to spend time with a terminally ill friend and the last visit to attend the funeral of this friend.

The Taxpayer is often accompanied on these visits by their spouse and child. They occasionally visit the former family home to check on its condition and has on occasion stayed there. The usually stay at:

•        In X, at their extended family's house.

•        In X, at a hotel.

•        In X, at a hotel.

The Taxpayer may in the future continue to make trips to Australia to see their extended family.

The Taxpayer and their spouse have arranged for Australian family members to visit them in Country A, including their parent, sibling, and extended family members.

Previous Private Binding Rulings

The Commissioner has issued the following private binding rulings, determining that the Taxpayer was not an Australian resident for income tax purposes for periods from XXXX through to XXXX:

•        Private Ruling Authorisation No 1012441967895.

•        Private Ruling Authorisation No 1012660928312.

•        Private Ruling Authorisation No 1051641272132.

•        Private Ruling Authorisation No 1051825087517.

•        Private Ruling Authorisation No 1052012863900.

•        Private Ruling Authorisation No 1052097399614.

Relevant legislative provisions

Income Tax Assessment Act 1936 subsection 6(1)

Reasons for decision

Question

Is the Taxpayer a resident of Australia for the purposes of subsection 6(1) of the Income Tax Assessment Act 1936, for the income year ending 30 June XXXX?

Summary

The Taxpayer is not a resident of Australia for income tax purposes for the income year ending 30 June XXXX.

Reasons for decision

The Commissioner has issued rulings to the Taxpayer which explain the conditions that must be satisfied for Australian residency for tax purposes. In the previous rulings, the Commissioner determined that the Taxpayer was not an Australian resident for income tax purposes for periods from XXXXX through to 30 June XXXX.

Relevantly, the facts for the income year ending 30 June XXXX remain the same as those for the income year ending 30 June XXXX (as set out in private ruling Authorisation Number 1052097399614), apart from the fact the Taxpayer visited Australia three times, staying a total of 25 nights:

•        5 nights from XXXX to XXXX;

•        16 nights from XXXX to XXXX,; and

•        4 nights from XXXX to XXXX.

The first two visits to spend time with a terminally ill friend and the last visit to attend the funeral of this friend.

This fact does not displace the findings in the previous abovementioned rulings that the Taxpayer was not a resident of Australia for income tax purposes.

Conclusion

The Taxpayer is not a resident of Australia for income tax purposes for the income year ending 30 June 20YY.