Edited version of private advice

Authorisation Number: 1052334176153

Date of advice: 28 November 2024

Ruling

Subject: Residency

Question 1

Are you a non-resident of Australia from 1 July 20XX to 30 June 20XX?

Answer 1

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 non-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 in Australia, however the Commissioner is satisfied that your permanent place of abode is outside Australia.

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

This ruling applies for the following periods:

Year ended 30 June 20XX

Year ending 30 June 20XX

The scheme commences on:

XX XXXX 20XX

Relevant facts and circumstances

This ruling applies to Person A and Person B (jointly referred to as you).

Person A was born in Country A.

Person A holds Australian and Country A citizenship.

Person B was born in Australia.

Person B holds Australian and Country B citizenship.

From XXXX 20XX to XXXX 20XX, you lived in Country A.

On XX XXXX 20XX, you were married in Country A.

From XXXX 20XX to XXXX 20XX, you lived in Country C.

In XXXX 20XX, Person A retired from work.

From 20XX to XX XXXX 20XX, you lived mainly in Australia.

On XX XXXX 20XX, you departed Australia and arrived in Country C.

From XX XXXX 20XX to XX XXXX 20XX, you have been considered a non-resident of Australia.

When departing Australia, you:

•                     Took all your personal effects with you to Country C, including your pet.

•                     Redirected your mail to your address in Country C.

•                     Cancelled your private health insurance.

•                     Removed your name off the Australian electoral roll.

You are Country C residence permit holders, which allows you to reside in Country C indefinitely.

You own the following Australian assets:

•                     Person B owns Property A in Australia, which is occupied by one of their children rent free.

•                     As tenants in common, Person A and one of Person B's children own Property B, which is currently tenanted.

•                     Person B owns Property C, which is occupied by one of their children rent free.

•                     Person B owns Property D, which is currently tenanted.

Person B holds a portfolio of Australian and overseas listed and unlisted shares and is an investor in three investments funds.

You have investments, bank accounts and credit cards in Country C.

You own the property you live in Country C.

Person A has XX children from a previous marriage: 2 live in Australia; and 2 live in the Country A.

Person A has XX siblings who live in the Country A.

Person B has XX children from a previous marriage, both live in Australia independently.

Person B has XX siblings. Their parent lives with one of their siblings in Australia.

Since departing Australia for Country C, you have returned XX times to visit family. You have not been in Australia for more than 183 days in the 20XX, 20XX, 20XX and 20XX income years. You have also stated you will not be in Australia for more than 183 days in the 20XX income year.

You will not return to Australia for reasons other than holidays to visit family.

You are not members of a superannuation scheme established by deed under the Superannuation Act 1990 (the Public Sector Superannuation Scheme).

You are not eligible employees for the purposes of the Superannuation Act 1976 (the Commonwealth Superannuation Scheme).

Relevant legislative provisions

Income Tax Assessment Act 1936 subsection 6(1)

Income Tax Assessment Act 1997 section 995-1