Edited version of private advice

Authorisation Number: 1052282932996

Date of advice: 30 September 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 ruling applies for the following periods:

Year ended 30 June 20XX

Year ended 30 June 20XX

The scheme commenced on:

XX XX 20XX

Relevant facts and circumstances

This private ruling is based on the facts and circumstances set out below. If your facts and circumstances are different from those set out below, this private ruling has no effect and you cannot rely on it. The fact sheet has more information about relying on your private ruling.

You are an Australian citizen and hold an Australian passport.

In XX 20XX, you departed Australia to reside and work full-time in Country A.

After residing in Country A for XX years with a full-time employment visa you obtained permanent residency status in 20XX.

When you departed Australia, you had no immediate plans to return to Australia. You intended to live in Country A indefinitely.

You currently do not have any plans to return to Australia permanently in the foreseeable future.

You have resided in Country A for XX years.

Your partner resides with you in Country A.

You have lived together since 19XX, initially in Australia, then in Country A since XX 20XX.

Your partner is a Country B national, an Australian permanent resident, and the holder of a Country A employment visa since 20XX.

Your partner joined you in Country A as soon as their employment visa was granted.

In XX 20XX, you were employed by University A of Country A as an XX on a full-time basis.

In XX 20XX, you were employed by University B as a XX on a full-time basis.

In 20XX, University B granted you substantiation (the functional equivalent of tenure in Australian universities).

Upon reaching the age of XX, in 20XX your substantiation came to an automatic end due to retirement regulations.

A few weeks before your XX birthday you accepted University B's offer of a full-time appointment as a XX, extending beyond the automatic termination of your substantiation. This contract ended in XX 20XX.

In XX 20XX, you accepted University B's offer of an additional fulltime contract for the role of XX. This second post substantiation contract is due to end in XX 20XX. You anticipate University B is likely to propose an additional few years contract extension. You are currently inclined to accept such an offer.

From XX 20XX to XX 20XX, you and your partner (from XX 20XX) lived in staff quarters provided by your employer, with rent being deducted from your salary. These quarters were partially furnished. You invested in various items such as light fittings, floor coverings, curtains, and a television.

In XX 20XX, you purchased an unfurnished apartment in Country A. You and your partner have resided in this flat since XX 20XX.

You bought furniture and appliances in Country A for the apartment.

Most of your personal belongings, including clothing, books, computers, and jewellery, are in Country A.

Since departing Australia, you have returned annually for short periods. These trips serve the purpose of both leisure and academic research activities.

On two occasions your stay was extended due to unforeseen circumstances.

On the first occasion you arrived in Australia with the intention of a brief visit.

You fell severely ill, leading to hospitalisation. Your recovery spanned until the end of XX 20XX, during which time you resided in location B at the home of a medically qualified friend.

On the second occasion you returned to Australia in late XX 20XX after visiting for several weeks previously, and your intention was to visit for up to XX weeks. The unexpected onset of the COVID-19 pandemic led to major travel limitations and interruptions to flight services. As a result, you found yourself unable to return to Country A for the remainder of the financial year.

When you travel to Australia you usually mark the 'visitors' option on the immigration card.

Your main bank accounts are in Country A.

You have a joint Country A bank account with your partner.

Your salary has always been deposited into your Country A bank account located in Country A.

You have been a member of a Country A Mutual Provident Fund (i.e., a superannuation fund) since your arrival in Country A.

You and your partner maintain a joint bank account in Australia, which generates interest income. Your bank categorizes you are a non-resident and applies a percentage non-resident tax on earnings.

You have a superannuation account, which was opened XX years prior to your departure from Australia.

You have some investments in Country B equities.

You own a townhouse in Australia. During your visits to Australia, you typically stay in your townhouse.

The townhouse remains empty at all other times.

You are not on the electoral roll in Australia.

Your Australia drivers' licence has expired, and you haven't taken any steps to have it renewed.

You have possessed a Country A drivers' licence since 20XX.

Between 20XX and 20XX you owned a car in Country A and used your Country A licence to drive it.

You have a Country A permanent residence visa, which you acquired at the earliest opportunity available under Country A law.

Relevant legislative provisions

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 for the years ended XX XX 20XX and XX XX 20XX.

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 not a resident of Australia for the 20XX and 20XX income years, as follows:

•                     You were 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 although you were in Australia for 183 days or more during the 20XX and 20XX income years due to circumstances outside your control 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 fulfill 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.