Edited version of private advice

Authorisation Number: 1052373726711

Date of advice: 18 March 2025

Ruling

Subject: Residency

Question 1

Are you a resident of Australia for tax purposes under section 6(1) of the Income Tax Assessment Act 1936 from XX XXX 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 resident of Australia for the period XX XXX 20XX to XX XXX 20XX, as follows:

•                You are a resident of Australia according to the resides test

•                You do not meet the domicile test because you are currently here on a XXX visa

•                You do meet the 183 day test because you were in Australia for 183 days or more during any income year this private ruling applies to,and the Commissioner is not 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 fulfill the requirements of the Commonwealth superannuation fund test.

Question 2

Will you be taxed at Australian resident rates instead of working holiday maker rates?

Answer 2

Yes.

You are a Country A citizen in Australia on a working holiday maker visa, and you are an Australian resident for taxation purposes. As you are from a country which has a non-discrimination article in its tax treaty with Australia, the High Court decision in Addy v Commissioner of Taxation [2021] HCA 34 applies to you. Therefore, you will be taxed on the same basis as a resident Australian national instead of being taxed under the working holiday maker taxation schedule.

This ruling applies for the following periods:

Year ended XX XXX20XX.

Year ending XX XXX 20XX.

The scheme commenced on:

XX XXX 20XX.

Relevant facts and circumstances

You were born in the Country A and are a citizen of that country.

On XX XXX 20XX you first entered Australia on a working holiday maker visa subclass XXX.

You primarily lived in City A, but also travelled around Australia and Country B.

You met your current partner on this first visit to Australia.

Your partner is an Australian citizen.

You returned to Country A after living and travelling in Australia on your first XXX visa subclass XXX.

Whilst back in Country A you introduced your partner to your family.

On XX XXX 20XX you returned to Australia on another XXX visa subclass XXX with the intention to live in Australia with your partner.

Your working holiday maker visa subclass XXX was renewed on XX XXX 20XX and will expire on XX XXX 20XX.

On this return visit you brought with you all of your personal belongings, having sold those you didn't require before you left the Country A.

You currently work in Industry A and operate your own business in Industry B in Australia.

You have extended family in Australia.

On XX XXX 20XX you entered into a rental agreement for the property at Address A.

You lived at Address A from XX XXX 20XX until XX XXX 20XX.

On XX XXX 20XX you moved to Address B, where you have lived continuously until the present day.

You departed Australia to visit your family in Country A on XX XXX 20XX and returned to Australia on XX XXX 20XX.

You took a holiday in Country C, departing Australia on XX XXX 20XX and returning on XX XXX 20XX.

You travelled to Country A again to see family on XX XXX 20XX, returning on XX XXX 20XX.

You holidayed in Country D, departing Australia on XX XXX 20XX and returning on XX XXX 20XX.

You intend to live in Australia permanently.

You have X bank/savings accounts in Country A, one of which you are unable to add to. These accounts are for travel money, ease of transferring money for things like family gifts, and emergency funds for when you are visiting Country A.

You hold no shares or property in Country A.

You hold X different savings/investment accounts in Australia.

You have a share portfolio in Australia.

You have an open member account with an Australian superannuation fund.

When your current XXX visa expires in XXX 20XX you will be required to leave the country, however, you have consulted immigration lawyers and taken preliminary actions to attain an alternate visa to remain in Australia.

Relevant legislative provisions

Income Tax Assessment Act 1997 subsection 995-1(1)

Income Tax Assessment Act 1936 subsection 6(1)