Edited version of private advice

Authorisation Number: 1052272934395

Date of advice: 15 July 2024

Ruling

Subject: Residency

Question

Are you a resident of Australia for tax purposes from Date one to Date two?

Answer

You are a resident of Australia for tax purposes from Date one to Date two.

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

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances

You were born in Country A and are a citizen of Country A.

You are not a citizen of any other countries.

You were first employed in Australia from Date three to Date four.

To facilitate this employment, you were granted a temporary work (skilled) visa) on Date five which expired on Date six.

You then applied for an employer sponsored visa which was granted on Date 7. This visa expired in 20XX because you left Australia at that time.

For about a year after this, you were employed in and resided in Country A. You travelled to Australia several times during that period.

To allow entry into Australia for the above travel, you applied for and were granted an eVisitor visa.

This visa allowed you to visit Australia as often as you wished during a limited time period and stay for several months each time you entered Australia.

Between Date 8 and Date 9, you were employed in Australia. You were granted a temporary skill shortage visa from Date 10 to Date 11. You then applied for and received a bridging visa which allowed you to remain in Australia until for a short time.

You left Australia shortly after your bridging visa was granted.

While in Australia, you lodged income tax returns in Country A to declare your Country A sourced income.

You have a spouse and several children.

Your spouse accompanied you to Australia and your older child year was born in City A in 20XX.

You have a XXX driver's licence (from Country A) which will expire in several years time.

You previously held an Australian driver's licence which expired several years ago.

While in Australia, you resided at rental accommodation at several properties consecutively in City A:

While in Australia, the house that you owned in Country A was rented to an unrelated party under a normal commercial lease arrangement.

It was first rented through a real estate agency shortly after you departed Country A. You did not use the address of the property as your mailing address while you were in Australia or continue having mail sent to the address.

You continued to pay the mortgage on the Country A property while you were in Australia.

You have a bank account and a superannuation fund account in Australia.

You have the following social, sporting and professional connections in Australia:

•         Membership of your local gym between 20XX and 20XX

•         Outings with the families in your young parents' group organised by the local Early Childhood Centre between 20XX and 20XX

•         For several months in 20XX, you attended a language course at university

•         One of your children attended swimming classes at a local swim school for several months

•         In the spring of 20XX, you crewed several times for a recreational sailing race

•         You attended a professional conference in City B and presented a technical paper

•         Subscribed to receive regular reports from professional bodies relating to your work

•         You were treated for post-surgery recovery at a local physiotherapist.

You have the following social, sporting and professional connections in Country A:

•         Membership of a government agency that organises and manages professionals in your industry,for which you maintained a subscription while you were in Australia

Your current mailing address is in Country B.

You received rental income from your Country A property while in Australia.

You did not have employment position or job being held for you overseas while you were in Australia.

Neither you nor your spouse were Commonwealth of Australia Government employees 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 the spouse or child under 16 of a person who is a member of the PSS or an eligible employee in respect of the CSS.

You did not undertake any courses of study while in Australia.

Relevant legislative provisions

Income Tax Assessment Act 1936 subsection 6(1)

Income Tax Assessment Act 1997 section 995-1

Reasons for decision

Question

Summary

You are a resident of Australia for tax purposes from Date one to Date two.

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 were a resident of Australia from Date one to Date two, as follows:

•         You were 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 for the 20XX and 20XX income years because you were in Australia for 183 days or more during the 20XX and 20XX income years. You do not meet the 183 day test for the 20XX and 20XX income years because you were not in Australia for 183 days or more during the 20XX and 20XX income year.

•         You do not fulfil 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.