Edited version of private advice

Authorisation Number: 1052265787397

Date of advice: 20 August 2024

Ruling

Subject: Residency

Question 1

Are you a non-resident of Australia for taxation purposes from 1 October 20YY?

Answer

Yes.

For tax purposes, you are a resident of Australia if you meet at leastone 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 tax years ending MM/20YY, 20YY and 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 meet the 183 day test because you will not be 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 for tax purposes from the date of your departure on DD/MM/20YY.

Question 2

Are the pension payments received by you from Country B assessable income in Australia after the date of your departure?

Answer

No.

In determining your liability to pay tax in Australia, it is necessary to consider any applicable double tax agreement.

The Convention between the Government of Australia and Country B for the Elimination of Double Taxation with respect to Taxes on Income and the Prevention of Tax Evasion and Avoidance (the Country B Agreement)operates to avoid the double taxation of income received by residents of one or both of the countries.

Article 17 of the Country B Agreement (covering Pension payments) provides that subject to the provisions of paragraph 2 of Article 18 (which covers pensions paid in connection with Government Service), pensions, payments made under the social security legislation and annuities paid to a resident of Country B shall be taxable only in Country B.

You have confirmed your Country B pension payments are from a private company you were employed with, and not connected to any Country B Government service.

As such, your Country B pension is not taxable in Australia from the date of your departure on DD/MM/20YY.

This ruling applies for the following periods:

Year ending DD/MM/20YY

Year ending DD/MM/20YY

Year ending DD/MM/20YY

The scheme commenced on:

DD/MM/20YY

Relevant facts and circumstances

You were born in Country B.

You are a citizen of Country B.

You were granted permanent residency in Australia on DD/MM/20YY, on a partner visa.

You have not applied for Australian citizenship.

You are returning to Country B due to family circumstances.

You intend to leave Australia for several years; you are unsure of when you may return at this stage.

You currently live with your spouse in XXX, in a property you jointly own.

Your spouse will continue to live in this property whilst you are overseas, and you will retain your XX% ownership in the property.

Your spouse will visit and holiday with you whilst you are overseas.

Your spouse is financially independent, and not reliant on support from you.

You intend to leave Australia permanently on DD/MM/20YY.

You plan to sell all of your vehicles and do not intend to renew your Australian driver's licence while not residing in Australia.

Upon departing Australia, you will inform Medicare and your private health provider of your departure.

You intend to purchase a unit in Country B as soon as possible after your arrival to reside in.

You hold bank accounts in both Australia and Country B.

You receive Country B pension payments from a private company you were employed with, and these are not connected to any Country B Government service.

Neither you, nor your spouse were a Commonwealth of Australia Government employee for superannuation purposes.

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.

You are not the spouse or a child under 16 of a person who is a member of the PSS or an eligible employee in respect of the CSS.

You will not spend more than 183 days in Australia and not visit any more than four times a year.

Relevant legislative provisions

Income Tax Assessment Act 1997 section 995-1

Income Tax Assessment Act 1936 subsection 6(1)

International Tax Agreements Act 1953