Edited version of private advice

Authorisation Number: 1052367025434

Date of advice: 27 February 2025

Ruling

Subject: Residency

Question 1

Are you residents of Australia for the purposes of subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA1936) from XX 20XX?

Answer 1

Yes.

Both of you are residents of Australia for tax purpose from XX 20XX because you are satisfied reside test and you are also satisfied 183-day test in 2025 and 2026 income years.

This ruling applies for the following periods:

Year ended XX June 20XX

Year ending XX June 20XX

Year ending XX June 20XX

The scheme commenced on:

XX 20XX

Relevant facts and circumstances

X and your spouse, Y were both born in the Country Z.

In XX 20XX, both of you immigrated to Australia.

On XX 20XX, both of you became dual citizen of Australia and Country Z.

In XX 20XX, both of you temporarily returned to the Country Z with your children to visit family in the Country Z since the COVID travel restrictions started.

Both of you intended to remain in the Country Z for approximately a year. Y resigned job with Australian employer and both of you rented out the main residence property in Australia and stored all your belongings.

In the Country Z, you and your family rented a property and purchased a car. Y accepted a position with an employer in Country Z and X continued to work under country Z employment contract.

In XX 20XX, you had another child and you decided to extend your stay in the Country Z.

In XX 20XX, you decided to return to Australia in early 20XX.

Y resigned the position with Country Z employer, X was transferred back to Australian employment contract after returning from leave as a part-time employee.

The car was left to your relatives and other belongings was either brought back Australia or sold, or place in storage in Country Z.

On XX 20XX, both of you with children returned to Australia. Y accepted a full-time position with an Australian employer. X returned to full-time employment with Australia employer.

Both of you with your family moved back to their resident property in Australia. Eldest children were enrolled in a local school and joined soccer and basketball teams.

Y undertook coaching children's soccer team, which is an ongoing role.

You have applied for a Medicare number for youngest child.

You have informed the Australian Electoral Commission and Medicare that you come back to Australia.

You and family intend to live and work in Australia for a foreseeable future.

Both of you are not a member of the Public Sector Superannuation Scheme (PSS) or the Commonwealth Superannuation Scheme (CSS) or a spouse of such a person.

Relevant legislative provisions

Income Tax Assessment Act 1936 subsection 6(1)

Income Tax Assessment Act 1997 subsection 995-1(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 both of you are residents of Australia from XX 20XX, as follows:

•                     You are 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 20XX income year. You meet the 183-day test if you will be in Australia for 183 days or more during the 20XX and 20XX income years.

•                     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.