Edited version of private advice

Authorisation Number: 1052283439610

Date of advice: 07 August 2024

Ruling

Subject: Residency

Question

For the 20YY financial year, will you be treated as an Australian resident for taxation purposes?

Answer

No.

This ruling applies for the following period:

Year ended 30 June 20YY

The scheme commenced on:

1 July 20YY

Relevant facts and circumstances

You are an Australian citizen.

You left Australia in 20YY with a permanent view to reside in country B for various business ventures.

You have started a family and purchased a family home in country B.

You visit family in Australia infrequently, visiting your relatives every couple of years usually around holiday time.

During COVID-19 you were unable to visit family due to restrictions.

You did not visit Australia between MM 20YY and MM 20YY.

You are a country B tax resident and pay tax withing this jurisdiction.

You have no business dealings in Australia or Australian sourced income.

Your spouse works for a country B employer.

You have been actively engaged in foreign business affairs in continent A and continent B since moving to country B.

You own a property in Australia jointly with your spouse at XXXX. You purchased this as a XXXX in 20YY, then changed to XXXX in 20YY. This property is not used to derive income and was purchased for future growth and as a currency hedge. You use the property as a holiday home and allow family members to use it during holidays infrequently.

You own a property with a third party purchased in 20YY. You intended to develop this property but instead the property remains dormant, and the third party pays the cost to upkeep the property. The intention is for the third party to take over as sole owner.

You have no intention of returning to reside in Australia.

You were in Australia in the 20YY financial year between DD MM 20YY to DD MM 20YY, DD MM 20YY to DD MM 20YY and DD MM 20YY to DD MM 20YY.

You spent a total of X days Australia during the year ended 30 June 20YY.

During your stays in Australia, you stay with family in state A or in hotels and Airbnb's or the property in XXXX.

You also travelled to Australia in the financial year ended 30 June 20YY to visit family.

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 for the year ended 30 June 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 for the year ended 30 June 20YY income years, 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 not in Australia for 183 days or more during the 20YY 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.