Private ruling: Residency
Date of advice: 15 April 2026
Published: 6 July 2026
Ruling period: Year ending 30 June 20YY | Year ending 30 June 20YY | Year ending 30 June 20YY | Year ending 30 June 20YY | Year ending 30 June 20YY | Year ending 30 June 20YY
Date scheme commenced: 01 July 20YY

Ruling: Q1: Are you a resident of Australia for tax purposes under subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936)? | A1: No.

Relevant facts and circumstances: You are a citizen of Country A, and you do not hold citizenship of any other country. You are trained in a recognised professional field. You were trained in your profession in Country A. You and your family were granted permanent residency in Australia. You were granted the distinguished Global Talent Visa (subclass 858) by the Australian Government in MM 20YY. Your Country A qualification has not been recognised in Australia and as a consequence you are unable to work in your chosen profession. You have been working in the Country B since DD MM 20YY, as a government employee. Your contracts are automatically renewed each year, but if you are terminated you are given XX months paid notice. You, and your family have lived in Country B for almost XX years, before your family emigrated to Australia. You are unable to move to Australia and live as a tax resident without being granted a license to work in your profession. You will continue to live in Country B as a tax resident of that country. You have maintained a residence, since your employment began in Country B in 20YY. The family residence in Country B was kept until recently, but you have now moved to a smaller residence. You have provided copies of phone accounts, insurance policies, electricity and water accounts and bank statements. During your annual leave you visit your family in Australia. This is approximately XX to XX weeks per year. The immigration card is ticked "visiting on holidays". To further substantiate your claim that you live and work in Country B: • You maintain bank accounts in Country B. • You maintain a residence in Country B where you live except for when you visit your family in Australia, during your annual leave. • You live approximately XX days a year in Country B. • The holiday option is selected on the entry card when you visit Australia. You have provided the dates when you travelled to Australia, in the past five years, and the length of your stay. You have provided the dates for your travel movements into and out of Australia since you gained permanent residency. You have provided the reasons for your annual leave, after your family emigrated to Australia in MM 20YY: • You had some accumulated leave from the Covid-period which had to be taken until the end of 20YY. • Two (study) leaves were taken to attend conferences in Australia. You have not lived in Australia for any period of time after you gained residency. You plan to visit your family in Australia, but this will be during your annual leave breaks from work. Leave breaks are approximately XX to XX weeks per year. Assets held in Australia and overseas You and your spouse own a property in Australia, where your family reside. Your spouse and their sibling own a property in Country A. You have a bank account in Country B and a bank account in Australia. Your spouse has a bank account in Australia and a bank account in Country A. You and your spouse own vehicles in Australia. You owned a vehicle in Country B. You and your spouse both have a foreign pension fund. Your spouse has a superannuation fund in Australia. You provide financial assistance to your family in Australia, to repay the mortgage and assist with living expenses. You have never worked in Australia. You and your spouse have never held Commonwealth of Australia Government superannuation accounts. You have an Australian, (State) Driver's License; required by the state government. You do not have an Australian Medicare card. You have Overseas Visitors Health Cover (OVHC) which is a form of health insurance designed for visitors to Australia. You have advised that according to the Department of Home Affairs, Overseas Visitor Health Cover (OVHC) products most commonly help to provide an appropriate level of private health insurance cover. Memberships Your spouse holds family memberships with the surf lifesaving and sailing clubs. You are a member of a cycling club in Country B. You have provided a copy of your membership as a citizen of Country A with a Country B Club. You have provided a letter advising that you are an integral part of a rugby club.

Relevant legislative provisions: Income Tax Assessment Act 1936 subsection 6-1(1) | Income Tax Assessment Act 1997 section 995-1

Reasons for decision: Summary: Section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997) defines an Australian resident for tax purposes as a person who is a resident of Australia for the purposes of the Income Tax Assessment Act 1936 (ITAA 1936). The terms 'resident' and 'resident of Australia', as applied to an individual, are defined in subsection 6(1) of the ITAA 1936. The definition offers four tests to ascertain whether each individual taxpayer is a resident of Australia for income tax purposes. These tests are: • the resides test (also referred to as the ordinary concepts test) • the domicile test • the 183-day test, and • the Commonwealth superannuation fund test. The resides test is the primary test for deciding the residency status of an individual. This test considers whether an individual resides in Australia according to the ordinary meaning of the word 'resides'. Where an individual does not reside in Australia according to ordinary concepts, they will still be an Australian resident if they meet the conditions of one of the other tests (the domicile test, 183-day test and Commonwealth superannuation fund test). Our interpretation of the law in respect of residency is set out in Taxation Ruling TR 2023/1 Income tax: residency tests for individuals . We have considered the statutory tests listed above in relation to your situation as follows: | Detailed Reasoning - The resides test: The ordinary meaning of the word 'reside' has been expressed as 'to dwell permanently or for a considerable time, to have one's settled or usual abode, to live, in or at a particular place': See Commissioner of Taxation v Miller (1946) 73 CLR 93 at 99 per Latham CJ, citing Viscount Cave LC in Levene v Inland Revenue Commissioners [1928] AC 217 at 222, citing the Oxford English Dictionary. Likewise, the Macquarie Dictionary defines 'reside' as 'to dwell permanently or for a considerable time; have one's abode for a time'. The observations contained in the case of Hafza v Director-General of Social Security (1985) 6 FCR 444 are also important: Physical presence and intention will coincide for most of the time. But few people are always at home. Once a person has established a home in a particular place - even involuntarily: see Commissioners of Inland Revenue v Lysaght [1928] AC 234 at 248; and Keil v Keil [1947] VLR 383 - a person does not necessarily cease to be resident there because he or she is physically absent. The test is whether the person has retained a continuity of association with the place - Levene v Inland Revenue Commissioners [1928] AC 217 at 225 and Judd v Judd (1957) 75 WN (NSW) 147 at 149 - together with an intention to return to that place and an attitude that that place remains "home": see Norman v Norman (No 3) (1969) 16 FLR 231 at 235... here the general concept is applicable, it is obvious that, as residence of a place in which a person is not physically present depends upon an intention to return and to continue to treat that place as "home", a change of intention may be decisive of the question whether residence in a particular place has been maintained. The Commissioner considers the following factors in relation to whether a taxpayer is a resident under the 'resides' test: • period of physical presence in Australia • intention or purpose of presence • behaviour while in Australia • family and business/employment ties • maintenance and location of assets • social and living arrangements. It is important to note that not one single factor is decisive, and the weight given to each factor depends on each individual's circumstances. Because the resides test is about whether an individual resides in Australia, the factors focus on the individual's connection to Australia. Having a connection with another country, or being a resident of another country, does not diminish any connection to Australia. The ordinary meaning of reside does not require an individual to have a principle or usual place of residence in Australia. | Detailed Reasoning - Application to your situation: You are not a resident of Australia under the resides test based on the following: • You are employed by company in Country B. • You have worked in Country B since 20YY. The hold a valid license to work in Country B until DD MM 20YY. • You have never worked in Australia and do not intend to work in Australia for the foreseeable future. • You lease and reside in a property in Country B. • You own a vehicle in Australia and have an Australian driver's license. You also own a vehicle in Country B. • You hold bank accounts in both Country B and Australia. • Your family live in Australia and you visit Australia during your annual holiday break. • You and your spouse purchased a property in Australia for your family to live. You reside at the property, only for short periods when you visit your family during your annual leave. • You contribute to the mortgage repayments of the Australian property. • Your family live in Australia. | Detailed Reasoning - Domicile test: Under the domicile test, you are a resident of Australia if your domicile is in Australia unless the Commissioner is satisfied that your permanent place of abode is outside Australia. | Detailed Reasoning - Domicile: Whether your domicile is in Australia is determined by the Domicile Act 1982 and the common law rules on domicile. Your domicile is your domicile of origin (usually the domicile of your father at the time of your birth) unless you have a domicile of dependence or have acquired a domicile of choice elsewhere. To acquire a domicile of choice of a particular country you must be lawfully present there and hold the positive intention to make that country your home indefinitely. Your domicile continues until you acquire a different domicile. Whether your domicile has changed depends on an objective consideration of all relevant facts. | Detailed Reasoning - Application to your situation: You were born in Country A and you have maintained your Country A citizenship. You do not hold citizenship of any other country. You were granted a Distinguished Global Talent Visa (subclass 858) and a permanent residency visa by the Australian Government. Your Country A qualification has not been recognised and you are unable to work in Australia in your chosen profession. It is considered that you did not abandon your domicile of origin in Country A, and acquire a domicile of choice in Australia. Your domicile of choice is Country B where you have worked in your chosen profession since 20YY. You are not a resident of Australia under the domicile test. | Detailed Reasoning - Permanent place of abode: If you have an Australian domicile, you are an Australian resident unless the Commissioner is satisfied that your permanent place of abode is outside Australia. This is a question of fact to be determined in light of all the facts and circumstances of each case. 'Permanent' does not mean everlasting or forever, but it is to be distinguished from temporary or transitory. The phrase 'permanent place of abode' calls for a consideration of the physical surroundings in which you live, extending to a town or country. It does not extend to more than one country, or a region of the world. The Full Federal Court in Harding v Commissioner of Taxation [2019] FCAFC 29 held at paragraphs 36 and 40 that key considerations in determining whether a taxpayer has their permanent place of abode outside Australia are: • whether the taxpayer has definitely abandoned, in a permanent way, living in Australia • whether the taxpayer is living in a town, city, region or country in a permanent way. The Commissioner considers the following factors relevant to whether a taxpayer's permanent place of abode is outside Australia: • the intended and actual length of the taxpayer's stay in the overseas country • whether the taxpayer intended to stay in the overseas country only temporarily and then to move on to another country or to return to Australia at some definite point in time • whether the taxpayer has established a home (in the sense of dwelling place; a house or other shelter that is the fixed residence of a person, a family, or a household), outside Australia • whether any residence or place of abode exists in Australia or has been abandoned because of the overseas absence • the duration and continuity of the taxpayer's presence in the overseas country • the durability of association that the person has with a particular place in Australia, i.e. maintaining assets in Australia, informing government departments such as the Department of Social Security that they are leaving permanently and that family allowance payments should be stopped, place of education of the taxpayer's children, family ties and so on. As with the factors under the resides test, no one single factor is decisive, and the weight given to each factor depends on the individual circumstances. | Detailed Reasoning - Place of abode: The expression "place of abode" refers to a person's residence, where one lives with one's family and sleeps at night ( R v. Hammond (1852) 117 E.R. 1477 at p. 1488; Levene v. I.R.C. (1928) A.C.217 and I.R.C. v. Lysaght (1928) A.C.234). In essence, a person's "place of abode" is that person's dwelling place or the physical surroundings in which a person lives. | Detailed Reasoning - Permanent: The leading case on whether a permanent place of abode is outside Australia is F.C. of T. v. Applegate (79 ATC 4307;(1979) 9 ATR 899). The taxpayer, whose domicile was in Australia, had been sent by his employer, a firm of solicitors, to establish a branch office in Vila, New Hebrides. His absence was to be for an indefinite period in the sense that the period was not specified or defined but it was expected that it would be of a substantial length. It was also expected that later he would be recalled to Australia. In fact, he returned to Australia after 2 years, his stay being cut short by illness. The taxpayer claimed that the salary he earned in Vila was exempt from Australian tax being income derived by a non-resident from sources wholly out of Australia. In that case, it was decided that, because the taxpayer could not be considered to have resided in Australia under the ordinary meaning of the word "reside", the extended definition of "resident" contained in paragraph (a)(i) had to be considered. Both the Supreme Court of New South Wales and, on appeal, the Full Court of the Federal Court of Australia held that the taxpayer had a permanent place of abode outside Australia. He was therefore a non-resident in the year of income concerned. The Federal Court rejected the Commissioner's argument that a permanent place of abode outside Australia required an intention to live outside Australia indefinitely without any intention of returning to live in Australia in the foreseeable future, other than at some remote, albeit specific, point of time. The Court said that the term "permanent" must be interpreted in the context in which it appears. The Court said that in its context in the "resident" definition a permanent place of abode does not have to be "everlasting" or "forever". It means something less than a permanent place of abode in which a person intends to live for the rest of his or her life. | Detailed Reasoning - Application to your situation: You purchased and own real Australian property with your spouse, and you contribute to the mortgage repayments. Your family reside in the Australian property. You visit your family for short periods of time during your annual leave and reside in the family home. You commenced employment with a company in Country B in 20YY and your contracts have been renewed each year. You initially had a family residence in Country B, and you moved to a smaller residence in Country B in MM 20YY, when your family relocated to Australia. The Commissioner is satisfied that your permanent place of abode is outside Australia. Therefore, you are not a resident of Australia for the year ended 30 June 20YY to 30 June 20YY under the domicile test you have a permanent place of abode in Country B. | Detailed Reasoning - 183-day test: Where a person is present in Australia for 183 days or more during the year of income the person will be a resident, unless the Commissioner is satisfied that both: • the person's usual place of abode is outside Australia, and • the person does not intend to take up residence in Australia. | Detailed Reasoning - Application to your situation: You visit your family in Australia during your annual leave, and the total days you have been present in Australia is less than 183 days in the income year. | Detailed Reasoning - Intention or purpose of presence: In assessing your intention or purpose for being in Australia, objectively observable factors and behaviours and contemporaneous statements about intent, such as those included on passenger cards and visa documents, are relevant (but not determinative). The type of visa you hold can also be evidence about your purpose for being in Australia. | Detailed Reasoning - Application to your situation: Your presence in Australia is for short periods, during your annual leave, to visit your family who reside in Australia. Your qualification has not been recognised in Australia, and you have not been granted a license to work in your chosen profession in Australia. When visiting Australia your immigration card is ticked "visiting on holidays". | Detailed Reasoning - Family, and business or employment ties: The presence (or absence) of your family also informs the nature of your connection to Australia. The presence of immediate family in Australia is often accompanied by increased connections to Australia (including periods of physical presence, assets such as a family home and motor vehicles, and an intention to return to a place you consider to be your home) and a settled routine consistent with residing in Australia. While the test is about whether you reside in Australia, the presence or absence of family, and the extent of business or employment ties in the overseas country will be relevant in giving context to your connection to Australia. Business or employment ties overseas may be less significant if they can be, and are, performed from anywhere in the world. The relevance and weight given to assets must be considered in your individual context. Both the significance of the assets to you and the reasons why they were acquired or maintained will be relevant. For example, opening a bank account in Australia may be no more than a mere convenience in which to deposit locally acquired earnings to fund a holiday. Australian bank accounts held open while you are located overseas could be consistent with maintaining a continuity of association with Australia, but could also be the result of there being no pressing reason to close them. | Detailed Reasoning - Application to your situation: You and your spouse purchased a home for your family to reside while living in Australia. You spend less than XXX days per income year visiting your family in Australia during your annual leave. You own a vehicle in Australia and also hold a driver's license, a requirement of the state government. You have an Australian bank account, to assist with the mortgage repayments for the property and also to support your family. You have worked for a company in Country B since 20YY. Your contract is automatically renewed each year. You have strong ties to Country B as follows: • License to work issued for XX years. • You are an active member of the XXX Community, provide education to your colleagues. • You are associated with a ruby football club. • You are an active member of Country B's University. • You are an active member of a cycling club. While your family reside in Australia, and you own real Australian property, and a vehicle in Australia, the Commissioner has weighed up the ties you have to Country B and Australia. It is considered that you have a stronger tie to Country B through your work and memberships. | Detailed Reasoning - Superannuation test: An individual is a resident of Australia if they are either a member of the superannuation scheme established by deed under the Superannuation Act 1990 or an eligible employee for the purposes of the Superannuation Act 1976, or they are the spouse, or the child under 16, of such a person. | Detailed Reasoning - Application to your situation: You are not a member on behalf of whom contributions are being made to the Public Sector Superannuation Scheme (PSS) or the Commonwealth Superannuation Scheme (CSS) or a spouse of such a person, or a child under 16 of such a person. Therefore, you are not a resident under this test. | Detailed Reasoning - Conclusion: As you do not satisfy any of the four tests of residency, you are not a resident of Australia for income tax purposes for the ruling periods.