Private ruling: Residency
Date of advice: 7 March 2023
Published: 24 April 2023
Ruling period: Year ended 30 June 20XX | Year ending 30 June 20XX | Year ending 30 June 20XX | Year ending 30 June 20XX
Date scheme commenced: 1 July 20XX

Ruling: Q1: Are you a resident of Australia for taxation purposes? | A1: No.

Relevant facts and circumstances: You were born in Australia. You are a citizen of Australia. You are not a permanent resident of any other country. You live and work in Country Z. You have a Visa to enter Country Z. You can renew this Visa every 12 months and you do not need to leave Country Z to renew it. You and your Australian spouse separated several months ago. You work for your employer in Country Z. You have worked in Country Z for several years. Your current work roster is alternating several weeks on and a few weeks off. You visit Australia for less than 183 days a year. The purpose of your visit to Australia is to see your children and parent. You will stay with your parent when you are in Australia. You have several children who live in Australia. You financially support one of your children through child support. You have a partner in Country Z. You live with your partner in Country Z. You and your partner rent accommodation in Country Z. You are a resident of Country Z for taxation purposes. Your employer in Country Z withholds tax from your income. You do not need to lodge tax returns in Country Z. You have sold your family home in Australia. You have a bank account and a joint bank account in Australia. You have a super fund in Australia. You own a car and a boat along with a trailer and a dual wheel trailer in Australia. You are not eligible to contribute to the PSS or the CSS super fund.

Relevant legislative provisions: Income Tax Assessment Act 1936 subsection 6(1)

Reasons for decision: Summary: For tax purposes, whether you are a resident of Australia is defined by subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936). The definition has four tests to determine your residency for income tax purposes. These tests are: • the resides test • the domicile test • the 183 day test, and • the Commonwealth superannuation fund test. It is sufficient for you to be a resident under one of these tests to be a resident for tax purposes. Our interpretation of the law in respect of residency is set out in Taxation Ruling TR 2022/D2 Income tax: residency tests for individuals . | Detailed Reasoning - The resides test: The resides test is the primary test of tax residency for an individual. If you reside in Australia according to the ordinary meaning of the word resides, you are considered an Australian resident for tax purposes. Some of the factors that can be used to determine whether you reside in Australia include: • 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. No single factor is decisive, and the weight given to each factor depends on your specific circumstances. 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. | Detailed Reasoning - The domicile test: Under the domicile test, if your domicile is in Australia, you are a resident of Australia unless the Commissioner is satisfied that your permanent place of abode is outside Australia. Whether your domicile is Australia is determined by the Domicile Act 1982 and the common law rules on domicile. For example, you may have a domicile by origin (where you were born) or by choice (where you have changed your home with the intent of making it permanent). Whether your permanent place of abode is outside Australia is a question of fact to be determined in light of all the facts and circumstances of each case. Key considerations in determining whether you have your permanent place of abode outside Australia are: • whether you have definitely abandoned, in a permanent way, living in Australia • length of overseas stay • nature of accommodation, and • durability of association. | Detailed Reasoning - The 183-day test: Under the 183 day test, if you are present in Australia for 183 days or more during the income year, you will be a resident, unless the Commissioner is satisfied that both: • your usual place of abode is outside Australia, and • you do not intend to take up residence in Australia. The question of usual place of abode is a question of fact and generally means the abode customarily or commonly used by you when are physically in a country. | Detailed Reasoning - The Commonwealth 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 circumstances: We have considered each of the statutory tests listed above in relation to your particular facts and circumstances. We conclude that, for the relevant income years, you are not a resident of Australia as follows. Taking into account your individual circumstances, we have concluded that you are not a resident of Australia according to ordinary concepts. We also consider that your domicile is not in Australia and the Commissioner is satisfied that your permanent place of abode is outside Australia. We considered the following factors in forming our conclusion: • You live and work in Country Z • You live with your partner in Country Z • You only come back to Australia to visit your children and parent • You are only in Australia for 42 days a year You do not intend on being in Australia for more than 183 days in any financial year and you do not intend on residing in Australia and your usual place of abode is in Country Z. You do not fulfil the requirements of the Commonwealth Superannuation test and are therefore not a resident under this test. You are not a resident of Australia for taxation purposes.