Edited version of private advice

Authorisation Number: 1052251323227

Date of advice: 6 June 2024

Ruling

Subject: Residency

Question

Are you residents of Australia for taxation purposes?

Answer

No.

This private ruling applies for the following periods:

Year ending X June 20XX

Year ending X June 20XX

Year ending X June 20XX

The scheme commenced on:

X July 20XX

Relevant facts and circumstances

Person A was born in Australia and has Australian citizenship.

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

Person B also has Australian permanent residency.

Person A and person B are married.

In October 20XX, person A departed Australia to begin residing in another Country A.

In January 20XX, person B and their children departed Australia to join person A.

Person A and Person B's children are subject to an 'Exemption Status for Families of Exempted Persons' which are valid until X July 20XX.

Person A and Person B ('you') entered into a rental agreement for your residence in Country A which commenced in January 20XX.

You then signed a new agreement for the same property which commenced in January 20XX.

This lease ends in 20XX.

You intend on renewing your rental lease for at least another X months.

You (Person A) are employed in Country A with an Australian company. You commenced in 20XX and are contracted for a minimum of X months, or until the completion of the project assigned to that contract.

You (Person B) are employed in Country A with an Australian company and work remotely from your home in Country A.

You intend to remain living in Country A indefinitely, even if you change employees.

Your children are enrolled and attend a school in Country A.

Your children are enrolled and attend a local swimming club.

You sold your Australian property in 20XX.

You do not own any other property in Australia.

Additionally, you sold the majority of your household effects, including motor vehicles.

You obtained a drivers' licence in Country A which expires in 20XX.

You obtained a boat in 20YY in Country A.

Since moving to Country A, you have visited Australia for a total of 60 days between you on various occasions.

The general purpose of these visits were for social events such as weddings.

When you visit Australia, you reside in hotels, Airbnb's, and with family.

You have retained your Australian bank accounts.

You have cancelled your Australian private health insurance.

You have advised the Australian electoral office to remove your names from the electoral roll.

You have never been employees of the Australian Commonwealth Government.

Relevant legislative provisions

Income Tax Assessment Act 1936 Subsection 6(1)

Reasons for decision

Summary

Under the law, meeting a single test suffices for being deemed a tax residence. In your case, you have not satisfied any of the tests. You are considered non-residents of Australian for taxation purposes.

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 residents of Australia for the income years ending X June 20XX, X June 20XX, and X June 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 in Australia, however the Commissioner is satisfied that your permanent place of abode is outside Australia.

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

•         your usual place of abode is outside Australia, and

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

•         You do not meet 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.