Private ruling: Residency
Date of advice: 1 November 2022
Published: 9 January 2023
Ruling period: Year ended 30 June 20XX
Date scheme commenced: 1 July 20XX

Ruling: Q1: Are you a resident of Australia for tax purposes for the income year ended 30 June 20XX? | A1: No.

Relevant facts and circumstances: You are an Australian citizen. You were married in Country A in 20XX, your spouse is a citizen of Country A. You reside in Country A on a permanent visa. You have never had employment, earned income or paid tax in Country A. You last visited Australia X years ago to attend you relative's funeral and you have not left Country A in X years. You have not left Country A because of their strict and costly quarantine for arrivals. You extended your stay overseas mostly as a result of illness and you not being able to get support from your parents in Australia. The costs of living in Country A as opposed to Australia, has also factored into your decision to stay in Country A. Prior to your departure from Australia, your residence was rental accommodation. You had owned a property, but it was sold some time before your departure. You intend to visit Australia in the next X months. The purpose of the visit is to see family. Your intention is to settle in Australia subject to you finding means to financially support yourself and your family. Your residence in Country A is owned by your spouse's parents. There is no tenancy agreement and you do not pay rent but do pay an amount towards utilities. You have one dependant, a child who was born in Country A in 20XX and is a dual citizen with Australia. Your immediate family lives with you in Country A. In 20XX you had major surgery and a health incident in 20XX that requires medical treatment. Your spouse was diagnosed with an illness in 20XX and still requires treatment. You are on daily medication due to illness and your spouse is still on regular medication because of complications resulting from their illness. This medication is heavily subsided in Country A which is not the case in Australia. From 20XX to 20XX you were not able to return to Australia due to COVID-19. You have a X% ownership interest in an investment property in Australia with your sibling and their spouse. The property is rented through a local agent. You have the following overseas assets: • a bank account that is used to transfer money from your Australian savings to meet living expenses • shares valued at $X that pay dividends of $X per year. You do not hold any property outside Australia. You have the following Australian assets: • bank accounts • X% ownership interest in the investment property which returns $X in rent per year • shares that pay a dividends of $X per year • Superannuation fund. Outside of this income, your family is supported by your spouse's employment income from employment in Country A. Your child attends school in Country A. Your mail is sent to your parent's residence in Australia. You are not a member of any club or groups in Country A. When you were in Australia you were a member of several clubs. Your typical daily routine in Country A is as follows: • when your spouse goes to work, you take care of the household, for example, shopping and taking care of your child • you spend time online seeking networking opportunities with the Australian expatriate community in Country A to source employment opportunities in Australia. You have an Australian driver's license and do not have one from any other country. The Australian Electoral Commission, Medicare and your bank have not been notified that you have left Australia. You suspended your private health insurance that will cancel after a period of time. You have never been employed by the Commonwealth of Australia. You are not a member of the Public Sector Superannuation Scheme or an eligible employee in respect of the Commonwealth Superannuation Scheme.

Relevant legislative provisions: Income Tax Assessment Act 1997 section 991-5 | Income Tax Assessment Act 1936 subsection 6(1)

Reasons for decision: Detailed Reasoning - Overview of the law: 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 Draft Taxation Ruling TR 2022/D2 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... [W]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 no one single factor is decisive, and the weight given to each factor depends on each individual's circumstances. Because the ordinary concepts test is 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: Logan J in Pike v Commissioner of Taxation [2019] FCA 2185 at 57 reminds us that 'it is no part of the ordinary meaning of reside in the 1936 Act that there be a "principal" or even "usual" place of residence. ... It is important that ... "resident" not be construed and applied as if there were such adjectival qualifications.' For this reason, the test is not about dominance or exclusivity. | Detailed Reasoning - Application to your situation: We have taken the following into consideration when determining whether you meet the resides test: • you have not been in Australia for X years • you reside in Country A on a permanent visa • your family lives with you in Country A • your child attends school and your spouse works in Country A • your movements and habits were consistent with having a settled routine in Country A. You are not a resident of Australia under the resides test for the year ended 30 June 20XX. You may still be an Australian resident if you meet the conditions of one of the other tests (the domicile test, 183-day test and Commonwealth superannuation fund test). | 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: In your case, you were born in Australia and your domicile of origin is Australia. It is considered that you did not abandon your domicile of origin in Australia and acquired a domicile of choice in Country A. You do not intend to reside in Country A indefinitely. Therefore, your domicile is Australia. | 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] FCA 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: (a) the intended and actual length of the taxpayer's stay in the overseas country; (b) 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; (c) 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; (d) whether any residence or place of abode exists in Australia or has been abandoned because of the overseas absence; (e) the duration and continuity of the taxpayer's presence in the overseas country; and (f) 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 he or she is 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 - Application to your situation: We have taken the following into consideration when deciding whether your permanent place of abode is outside Australia: • you have not been in Australia for X years • you reside in Country A on a permanent visa • your family lives with you in Country A • your child attends school and your spouse works in Country A • your movements and habits were consistent with having a settled routine in Country A. The Commissioner is satisfied that your permanent place of abode is outside Australia. Therefore, you are not a resident of Australia under the domicile test. | 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 have not been present in Australia for 183 days or more during the 20XX income year. Therefore, you are not a resident under this test. | 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 year ended 30 June 20XX.