Private ruling: Residency
Date of advice: 9 December 2025
Published: 27 January 2026
Ruling period: 1 July YYYY to 30 June YYYY
Date scheme commenced: XX March YYYY

Ruling: Q1: Is the Trust a resident of Australia under subsection 95(2) of the Income Tax Assessment Act 1936 (ITAA 1936)? | A1: Yes

Relevant facts and circumstances: 1. On DDMMYYYY the Trust, was settled by deed in a foreign country (Country A). 2. The Trust Deed provides the following: • The Settlor was a resident of Country A. • There were 3 Trustees - 2 were residents in Australia (Australian Trustee 1 and Australian Trustee 2), and one was resident in Country A (Country A Trustee). • Beneficiaries: o final Beneficiaries means the children of the patriarch and matriarch o discretionary Beneficiaries means: § the Final Beneficiaries § any spouse of the Final beneficiaries § child or children or remoter issue of any Final Beneficiary and their respective spouses; and § any company in which any of the persons mentioned or any trust falling within this definition holds individually or collectively at least fifty percent of the share or is entitled to at least fifty percent of the proceeds on a winding up and § any Trustees of any superannuation fund in which any person specified is a member § the trustee of any trust of which any of the persons specified are beneficiaries § any charity. • Trustees have the absolute discretion to use the Trust's net income during the trust period for any of the following: o Support and benefit of discretionary beneficiaries (e.g., personal needs, education, comfort). o Payment of trust liabilities, including premiums, mortgages, interest, or related charges. o Charitable purposes or transfer to another trust. o Retaining income within the trust or allocating it to reserves or capital. Any income used for capital liabilities becomes part of the trust capital unless trustees decide otherwise. • Any income not used or retained within six months after the end of an income year must be accumulated and added to the trust's capital, becoming subject to the same trust terms and powers. • All decisions of the Trustees except in relation to the power to appoint new trustees shall be unanimous. • The Trust shall be governed by and construed in accordance with the laws of Country A. • Trustees have the power to change the governing law and jurisdiction of the trust at any time by making a formal declaration (Deed). 3. Country A Settlor and Trustee was always a tax resident of Country A. 4. The Country A Settlor was an unrelated third party. 5. Australian Trustee 1 & 2 were husband and wife and were always tax residents of Australia. 6. On DDMMYYYY under the Deed of Retirement of Trustee, the Country A Trustee resigned as trustee and the assets of the Trust vested in the continuing Australian Trustees 1 & 2. 7. Australian Trustee 1 passed away on DDMMYYYY. 8. The child of Australian Trustee 1 & 2 became Australian Trustee 3. They have been the sole trustee since Australian Trustee 1 passed away and has always been a tax resident of Australia. 9. Australian Trustee 2 passed away on DDMMYYYY. 10. The activities of the Trust are to hold term deposit accounts in Country A. 11. The Trust had only ever derived interest income from term deposit accounts through banks in Country A. 12. All interest income has been disclosed in each relevant year to the Taxation Agency of Country A and has had Country A taxation paid by the Trustees at a xx% tax rate. 13. The interest income has been accumulated in the Trust and has not been distributed to any beneficiary in any of the income years. 14. The income ceased being derived by the Trust in the year ended DDMMYYYY. 15. The latest financial statement for the Trust dated DDMMYYYY recorded an accumulated profit amount of $X. 16. Financial statements and Country A income tax returns show a total of $X of income derived between the YYYY and YYYY years and an associated tax amount of $X paid in Country A. 17. The only asset or liabilities in the Trust are an amount owing from the estates of Australian Trustee 1 & 2 to the Trust reflecting cash withdrawals received from the Trust prior to their passing. 18. Australian Trustee 3 wishes to vest the Trust. 19. The Trust has not previously lodged an Australian income tax return and does not have an Australian tax file number.

Relevant legislative provisions: Income Tax Assessment Act 1936 subsection 95(2) Summary | The Trust is an Australian resident for tax purposes under subsection 95(2) as it has always had at least one Australian resident trustee since it was established on XX March XXXX.

Reasons for decision: Summary: Residency of the Trust under Australian domestic law 20. The residence of the Trust determines the taxing rights and obligations. 21. Under subsection 95(2), a trust is a resident of Australia in relation to a year of income if: (a) a trustee of the trust estate was a resident at any time during the year of income, or (b) the central management and control of the trust estate was in Australia at any time during the income year. 22. Since the Trust was settled by deed there has always been at least one trustee who is an Australian resident. 23. As a result, the Trust is a resident of Australia for domestic taxation purposes under section 95 as at least one of the trustees of the Trust is an Australian resident.