Edited version of private advice

Authorisation Number: 1052337523405

Date of advice: 28 November 2024

Ruling

Subject: Assessable income - residency

Question

Are you a considered a non-resident of Australia for the purposes of section 6(1) of the ITAA 1936 from the date you departed Australia?

Answer

Yes.

This ruling applies for the following period:

Year ending 30 June 20XX

The scheme commenced on:

1 July 20XX

Relevant facts and circumstances

You were born on XX XX 19XX in Australia, and you are an Australian citizen.

You are married and have a child; your spouse and child are also Australian citizens.

Your spouse holds a Country B citizenship.

You are currently the director of a number of private companies. You have resigned as the director for the majority of these companies and will deregister any companies that are no longer required.

On XX XX 20XX, your main residence was listed for sale, it was passed in at auction on XX XX 20XX. It remains listed for sale and is intended to be sold as a matter of priority.

On XX XX 20XX you sold half of your interest as the managing partner of a Company (Company A). You intend to sell your remaining interest by XX XX 20XX. You will continue as a part-time consultant for Company A.

On XX XX 20XX, you were granted a Country X Visa. The initial visa period is X years.

On XX XX 20XX, international removalists were engaged to transport your personal belongings and furniture to Country X. Any items not transported to Country X have been donated or sold.

On XX XX 20XX, you departed Australia permanently to Country X.

You will live and work in Country X for the entirety of your approved visa. Your spouse and child have accompanied you to Country X. You do not intend to return to Australia.

Any income you receive from Company A will be paid to your Country X bank account.

You will remain a director of Company B and Company C until XX XX 20XX.

Your Australian share portfolio is in the process of being sold.

You and your spouse have a joint Australian self-managed superannuation fund (SMSF) which you are rolling into an industry superannuation fund.

You and your spouse have each appointed an Enduring Power of Attorney to replace yourselves as directors of the corporate trustee of the SMSF.

On XX XX 20XX, your child commenced at the Australian International School in Country X.

On XX XX 20XX, you signed a lease for an apartment in Country X.

In late XX 20XX, you sold your Australian motor vehicle, and you intend to lease a new car in Country X.

At the expiration of your current visa, you intend to reapply for another visa in Country X, or alternatively move to another country.

You and your spouse have been granted a Country X identification card.

You and your spouse have applied for a Country X driver's licence.

You have purchased new furniture for the Country X apartment.

You have opened various utility accounts in your name in Country X.

You and your spouse have obtained Country X phone numbers.

Your postal address has been updated to be your Country X address.

You and your spouse have opened bank accounts in Country X.

You have engaged Country X lawyers and accountants to take steps to set up a company focusing in the 'green energy' sectors. The company will employ you.

You have long term friends and business colleagues in Country X.

Your travel back to Australia during the 20XX income year are as follows:

• XX to XX XX 20XX to chair a charity lunch and attend a family members wedding
• XX XX - XX XX 20XX to attend an international conference
• XX - XX XX 20XX - to visit family friends.

You have commenced the process to cancel your Australian private health insurance and you have obtained health insurance in Country X.

You and your spouse have notified the Australian Electoral Commission and requested to be removed from the electoral rolls in Australia.

You and your spouse are not members of a Commonwealth superannuation fund.

Relevant legislative provisions

Income Tax Assessment Act 1936 section 6-1

Income Tax Assessment Act 1997 section 995-1

Reasons for decision

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 20XX income year, as follows:

• You are not a resident of Australia according to the resides test.
• You do not meet the domicile test. While your domicile of origin is in Australia, it is considered that you have since obtained a domicile of choice in Country X. This is because you have departed Australia and set up a home in Country X. You live there with your family and return to Australia only occasionally. Your circumstances indicate you have abandoned Australia as a place of residency and commenced living in a permanent way overseas.
• As you have obtained a domicile of choice in Country X, the Commissioner is satisfied that your permanent place of abode is outside Australia, and you are not a resident of Australia under the domicile test.
• You do not meet the 183 day test because you were not in Australia for 183 days or more during the 20XX income year.
• You do not fulfill the requirements of the Commonwealth Superannuation test.