Edited version of private advice

Authorisation Number: 1052239115896

Date of advice: 9 April 2024

Ruling

Subject: Residency

Question

Are you a resident of Australia for taxation purposes from DD MM 20XX?

Answer

No.

This ruling applies for the following periods:

Year ended 30 June 20XX

Year ended 30 June 20XX

Year ended 30 June 20XX

Year ended 30 June 20XX

Relevant facts and circumstances

You are an Australian citizen.

You left Australia on DD MM 20XX for Country B.

You have been employed full-time by Employer X since MM 20XX.

You are paid your salary in Country B currency.

You had an initial visa to enter Country B that was valid from DD MM 20XX to DD MM 20XX.

You hold a permit which is issued by the Country B government to staff employed as XXXX. This serves as a residency permit in Country B and exempts you from any visa requirements.

You have continuously held a permit since DD MM 20XX, and it is currently valid until DD MM 20XX.

The permit has a notional expiry date that is linked to your Australian passport, or valid for a period of 2 years at a time. Your employer applies to have the card renewed.

You intend on applying for permanent residency in Country B. The Country B government requires you be a continuous resident for X years before you become eligible.

You have held a residential rental lease in Country B since MM 20XX.

You had a spouse who did not move to Country B with you because they were completing education in X State.

Your spouse was living in accommodation supplied by their employer in X State.

Your spouse passed away in MM 20XX.

You own a residential property in Australia jointly with your spouse. This is rented to a tenant on a commercial lease.

The property has been rented since MM 20XX when your spouse vacated the property to work in X State.

You have no intention of returning to reside in Australia.

You have cancelled your Australian private health insurance.

You have informed the Australian Electoral Commission that you reside in Country B.

You did not ask for your Medicare account to be closed at the time as this was the only means of digitally registering COVID certification.

You have an Australian driver's licence.

You will inform any Australian financial institutions you are a non-resident once you receive confirmation from the ATO that you are not a tax resident of Australia.

You were a contributing member of the Public Sector Superannuation Scheme (PSS) from MM 20XX to MM 20XX when you ceased to be a contributing member.

You are a contributing member to a Superannuation Fund from MM 20XX onward.

You have the intention to change your Superannuation fund to a Country B fund, but you require confirmation from the ATO that you are not a tax resident of Australia.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 995-1.

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 for the years ended 30 June 20XX, 20XX, 20XX and 20XX 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 meet the 183 day test because you were not in Australia for 183 days or more during the relevant income years.

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

Therefore, you are not a resident of Australia from the date of your departure on XX XX 20XX.

More information

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