Edited version of private advice

Authorisation Number: 1052252479748

Date of advice: 17 May 2024

Ruling

Subject: Residency

Question

Are you an Australian resident for tax purposes after your date of departure on DD MM 20YY?

Answer

No.

This ruling applies for the following periods:

Year ended 30 June 20YY

Year ended 30 June 20YY

Year ended 30 June 20YY

Year ended 30 June 20YY

Year ended 30 June 20YY

Year ended 30 June 20YY

The scheme commenced on:

1 July 20YY

Relevant facts and circumstances

You are an Australian and Country B citizen.

You were born in Country C as a Country B citizen to Country B parents.

You departed Australia on DD MM 20YY for business in Country D.

You departed Country D on DD MM 20YY for Country C for a holiday.

You departed Country C on DD MM 20YY for Country E to commence your study and work at the University of City X.

The study is a X-year funded program.

You were on a Visa A visa in Country E.

This visa is valid for a period of X years.

You applied for Visa B in Country E which was granted on DD MM 20YY.

You are employed by Employer A commencing MM 20YY and ending MM 20YY.

You are in negotiations to extend your employment with Employer A for at least X years.

You are employed by Employer B on partial remuneration. This employment contract will revert to full time employment in MM 20YY unless you resign.

You have returned to Australia for a short period of time each year since arriving in Country E. The purpose of these trips is to visit family, check in on your house in Australia and carry out research related to your Study.

You travelled to Australia on DD MM 20YY and departed DD MM 20YY.

You travelled to Australia on DD MM 20YY and departed DD MM 20YY.

You travelled to Australia on DD MM 20YY and departed DD MM 20YY. During this visit you also visited Country F for unpaid voluntary work for Employment C from DD MM 20YY to DD MM 20YY.

You travelled to Australia on DD MM 20YY and departed DD MM 20YY.

For all visits to Australia, you have had a return ticket to Country E.

You rent a home with your current partner in Country E at XXXX address.

You have a Country E drivers' licence.

You have a bank account and credit card in Country E.

You have household and personal effects in Country E.

You jointly own a home in Australia at XXXX address with Person A.

You stay in this home during your visits to Australia.

You have household and personal effects in Australia, kept at either the property you co own with Person A or at your office at Employer B.

The home is not being rented out and is being occupied by Person A. You pay all Person A's expenses due to Person A having a disability.

Your children are all independent adults.

You and your spouse are not employees of the Commonwealth of Australia for Superannuation purposes.

You have not advised the Australian Electoral Office to have your name removed from the electoral role.

You have not advised any financial institutions that you are a foreign resident so that non-resident withholding tax can be deducted.

You have not advised any Australian companies with whom you have investments that you are a foreign resident.

You have not advised Medicare of your health insurance provider to have your name removed from their records.

You are not required to lodge a tax return in Country E.

You plan to continue to reside in Country E.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 995-1

Income Tax Assessment Act 1936 subsection 6(1)

Reasons for decision

Summary

You do not meet any of the four tests for Australian tax residency, therefore you are not a resident of Australia for taxation purposes from DD MM 20YY.

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 from the year ended 30 June 20YY to the year ending 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.

•         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:

­   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.