Edited version of private advice

Authorisation Number: 1052325396290

Date of advice: 4 November 2024

Ruling

Subject: Residency

Question

Are you a resident of Australia for taxation purposes?

Answer

Yes.

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 a resident of Australia for the 2024-25 and 2025-26-income years, as follows:

•         Based on you and your family's intention to return to Australia within the next 2 to 3 years, along with your ties remaining in Australia, you are a resident of Australia according to the resides test.

As you have met the resides test, the remaining tests do not need to be considered.

More information

For more information about residency, see Taxation Ruling TR 2023/1 Income tax: residency tests for individuals.

This ruling applies for the following periods:

Year ending 30 June 20XX

Year ending 30 June 20XX

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances

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

You acquired permanent residency in Australia in early 20XX, and your intention was to live permanently in Australia.

You have been living and working in Australia since that time.

Prior to this, you were living and working in Australia since 20XX on a working visa, and lodging your income tax returns as an Australian resident for taxation purposes. You have retained the same Australian employment since 20XX.

In mid-20XX, you temporarily moved to Country B with your spouse and your young child. Your spouse is also due to give birth to your second child in mid-to-late 20XX.

You plan to stay in Country B for 2 to 3 years so your parent-in-law can help take care of your newborn baby once they are born in mid-to-late 20XX.

You and your family will be living together with your parent-in-law whilst you are living temporarily in Country B.

During these 2 to 3 years, you will be working remotely for your Australian employer and your employer has approved the remote work arrangement.

Your travel movements in the next 2 to 3 years will be mostly between Country B to Australia about 4 times through a calendar year, and possibly 2 times to Country A.

The purpose of travelling to Australia, is to travel back to home office for work purposes, and, for visiting friends and holiday.

The purpose of travelling to Country A, is to visit family and visit suppliers in Country A.

When completing incoming and outgoing passenger cards, you will be declaring yourself as a permanent resident returning to Australia, you will be using an Australian address.

You will not lodge any foreign tax returns while living temporarily in Country B.

You intend in living permanently in Australia, following your temporary stay in Country B.

Your family has travelled with you to Country B for your temporary stay.

Your spouse is also a permanent resident of Australia as well as a citizen of Country B. Your spouse and young child also applied for Australian citizenship prior to your travel to Country B.

Whilst you have been living in Australia, your family attended Sunday service at local Church every week, where you played the piano for the service.

Whilst you are living temporarily in Country B you will attend a church service.

You have an Australian driver's licence.

When you left Australia for Country B, you did not inform the Australian Electoral Commission or Medicare that you were departing Australia.

When you left Australia for Country B, you asked your private health insurance provider to suspend your private health insurance, and you will re-activate this once you move back to Australia.

When you and your family are living temporarily in Country B with your parent-in-law, your overseas address will be in a Country B apartment owned by your parent-in-law.

Prior to travelling to Country B, you and your family lived in a home you owned in Australia.

You will move back into this property upon your return to Australia.

You have rented your Australian property out whilst you are living temporarily in Country B, and it was first rented out in mid-to-late 20XX.

Your Australian property has been rented to unrelated parties under normal commercial lease arrangements at normal commercial rent rates.

You have an Australian real estate agent managing the property.

You will continue to use the address of this residence as your address on documents.

You obtained a home loan to purchase your Australian property, which you will continue paying whilst you are overseas.

You will not receive mail to your Australian property address whilst you are living temporarily overseas. You have redirected your personal mail to your friends address in Australia, and you have redirected your property related mail to your Australian real estate agent. All tax related mail has been redirected to your Australian tax agent.

You do not hold any assets in Country B or anywhere else outside Australia.

You own the following assets in Australia:

•         Car

•         Residential property

•         Investments and bank accounts.

When you left Australia, you sold most of the furniture and electronics as you don't want to spend money to rent a storage unit. You plan to re-purchase all the household effects after you return to Australia.

You have stored your personal effects in Australia in your neighbour's garage.

You do not receive income from any sources outside of Australia.

You will be working remotely for your Australian employer whilst living in Country B.

Neither you nor your spouse are 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 of a person who is a member of the PSS or an eligible employee in respect of the CSS.

You have not advised any Australian financial institutions including any Australian companies with whom you have investments with that you are a foreign resident so that non-resident withholding tax can be deducted.

Relevant legislative provisions

Subsection 6(1) of the Income Tax Assessment Act 1936

Subsection 995-1(1) of the Income Tax Assessment Act 1997