Edited version of private advice

Authorisation Number: 1052250168126

Date of advice: 9 May 2024

Ruling

Subject: Residency

Question

Are you a resident of Australia for tax purposes as defined by subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936)?

Answer

No.

This private ruling applies for the following periods:

Year ending 30 June 20YY

Year ending 30 June 20YY

Year ending 30 June 20YY

Year ending 30 June 20YY

The scheme commenced on:

23 February 20YY

Relevant facts and circumstances

You were born in Australia and are an Australian citizen.

You accepted a 3-year employment contract in Country A working for XXXXX XXXX Corporation.

Your position is Professional Services - Senior XXXX Manager.

Your position can be extended for an additional 3-year period.

On XX month 20XX you relocated to City A, Country A to commence your employment.

You travelled on a 3-month work visa to permit entry into the country and finalise a Residency visa.

On XX month 20XX you received a Residency visa that is valid until XX month 20XX which will be extended as required to complete your employment contract.

Your visa was supplied by your employer.

You initially stayed in hotel accommodation until you located suitable permanent accommodation.

On XX month 20XX you relocated to permanent accommodation located in City A, Country A. You signed a 12-month lease which expires on XX month 20XX.

Your employment contract allows you five weeks annual leave and two and a half weeks leave for public holidays.

You may make the occasional trip back to Australia whilst on annual leave to visit family (parents and siblings) and friends. On any such trip you will not be in Australia for more than 180 days.

You have no intention of returning to Australia, on a permanent basis, prior to the completion of your employment contract.

You are not committed to returning to Australia at the end of your employment contract and are open to extending the contract should the opportunity become available to you.

You do not have a spouse or dependents.

You own an apartment in Australia, which you will retain ownership of while overseas as an investment property.

On XX month 20XX you commenced renting out the property, fully furnished, on a 12-month lease.

You own a vehicle that you will sell upon departure.

You hold an Australian and Country A drivers' license.

You own a 10% interest in an Australian commercial property in partnership with two other unrelated parties. Your intention is to divest from this asset within the next 12 months.

You hold shares listed on the Australian Stock Exchange that you will either continue to hold or divest depending on market conditions.

You will retain an Australian bank account to allow rental income to be paid into.

You will maintain a Country A bank account into which your salary will be paid.

Upon your departure you will not have any social connections with Australia.

You have contacted your private health insurance provider to have your policy cancelled.

You have notified the Australian Electoral Commission of your change of residency, and they have removed your name from the Electoral Roll.

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.

Relevant legislative provisions

Income Tax Assessment Act 1936 subsection 6(1)

Reasons for decision

Issue

Residency

Question

Are you a resident of Australia for tax purposes as defined by subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936)?

Summary

No.

Detailed reasoning

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 income year ending 30 June 20YY until 30 June 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, and the Commissioner is satisfied that your permanent place of abode is outside Australia.

•         You do not meet the 183 day test because you were in Australia for 183 days or more during the 20YY income year, and the Commissioner is satisfied that both:

o   your usual place of abode is outside Australia, and

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

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