Edited version of private advice

Authorisation Number: 1052382698593

Date of advice: 9 April 2025

Ruling

Subject: Residency

Question 1

Are you a resident of Australia for the period starting 1 July 20XX until the year ended 30 June 20XX under section 995-1(1) of the Income Tax Assessment Act 1997 (ITAA 1997) and subsection 6(1) of the ITAA 1936?

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 were a resident of Australia for the 20YY income year, as follows:

•                     You were a resident of Australia according to the resides test.

•                     XX X 20XX you departed Australia.

•                     You continue to lease a property (the property) in Australia. You, your spouse and your child are the tenants named on the lease agreement.

•                     You do meet the domicile test because your domicile is in Australia and the Commissioner is not satisfied that your permanent place of abode was outside of Australia.

•                     You do meet the 183-day test because you were in Australia for 183 days.

•                     You do not fulfill 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.

Question 2

Are you a resident of Australia for the period starting 1 July 20XX until the year ended 30 June 20XX under section 995-1(1) of the ITAA 1997 and subsection 6(1) of the ITAA 1936?

Answer

Yes.

We have considered your circumstances, and conclude that you are a resident of Australia for the income year 20YY, as follows:

•                     You are not a resident of Australia according to the resides test.

•                     You are a resident of Australia for tax purposes under the domicile test as:

-                    you did not abandon your domicile of origin Australia and acquire a domicile of choice in Country A.

-                    You intend to return to the property after your overseas travels.

•                     You maintain a continuity of association to Australia through your business role performed remotely in the other Country and directly in Australia.

•                     XX X 20XX, you registered an Australian company, with yourself as the sole director.

•                     You maintain a personal connection to your employees when visiting Australia.

•                     You continue to lease a property (the property) in Australia. You, your spouse and your child are the tenants named on the lease agreement.

•                     You have given your other Country XXXX address for the Australian elections and the requirement to send a postal vote.

•                     You have not advised Medicare to remove your name from their records.

•                     you are a resident under the domicile test because your domicile is in Australia and the Commissioner is not satisfied that your permanent place of abode is outside Australia.

•                     You do not meet the 183-day test because you will not be in Australia for 183 days or more during the 20XX income year, but the Commissioner is not satisfied that:

-                    You did not abandon your domicile of origin or domicile of choice Australia and acquire a domicile of choice in the other Country.

-                    You are not entitled to reside indefinitely in the other Country as you only stay in the country under a temporary visa.

-                    Your permanent place of abode is outside Australia.

•                     You do not intend to take up permanent residence outside of Australia.

•                     You do not fulfill 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 commenced on:

1 July 20XX

Relevant facts and circumstances

You were born in Australia.

You are an Australian citizen.

Your spouse holds a dual passport.

Your spouse was born in Australia. He holds a second passport in another country.

You, your spouse, your child and your dog intend to travel in and around another country for approximately X years.

You are allowed to accompany your spouse and are eligible for a residency card in the country you will be travelling in.

You are required to apply for a residency permit after having been in the other country for X months.

In XX 20XX you applied for a temporary residency card in the other country.

On XX/XX/20XX you departed Australia.

On XX/XX/20XX you came back to Australia.

On XX/XX/20XX you went back to the other country.

On XX/XX/20XX you came back to Australia. You are unable to set up your business in the other country until you have received your temporary residency card. You have come back to Australia to work for your Australian employer.

You intend to go back to the other country in XX 20XX.

You don't intend to return to Australia until XX 20XX.

When you are in Australia you work for your Australian employer on a payroll.

When you are out of Australia you bill your employer using your sole trader ABN.

On XX/XX /20XX, you registered an Australian company with yourself as the sole director.

You intend to move your Australian employer from your sole trader ABN over to your company.

Your spouse will be working for the company.

The company will subcontract to your Australian employer.

You also intend to nominate one of your Australian based children as a director of the company.

Your business income will be your only source of income while overseas.

Australian connections

You continue to lease a property (the property) in Australia. You, your spouse and one of your children are the tenants named on the lease agreement.

You continue to pay for the lease on the property.

The utilities for the property are in your name. You pay for the gas, electricity, water and garden care.

Two of your children who are attending school in Australia, live in the property while you are overseas.

One of your children pays you for board.

Your other child does not pay board as they do not have a job.

You often buy meals for your children in Australia, pay for their medical expenses and vet expenses for their animals.

Your car and belongings (furniture) in Australia are kept at the property.

You intend to return to the property after your overseas travels.

You have a:

•                     Personal bank account

•                     Personal loans

•                     Business bank account.

You have not advised any Australian financial institutions that you are a foreign resident.

You don't play sport or belong to any clubs.

You go to the local gym.

You have friends and go to church on occasions.

You have given your address in the other country due to Australian elections and the requirement to send a postal vote.

You have not advised Medicare to remove your name from their records.

You are a member of a self-managed superannuation fund.

Other country connections

You and your spouse have purchased portable transport in the other country which you live, work and travel around in.

Your spouse has a car in their name which you use when in the other country.

You have not lodged a tax return in the other country.

Your third child is going to school in the other country.

Your spouse, child and dog remain in the other country when you travel back to Australia.

Relevant legislative provisions

Income Tax Assessment Act 1997 subsection 6(1)

Income Tax Assessment Act 1997 section 995-1