Private ruling: Residency
Date of advice: 18 May 2026
Published: 3 August 2026
Ruling period: Income year ended 30 June 20YY | Income year ended 30 June 20YY | Income year ended 30 June 20YY
Date scheme commenced: 1 July 20YY

Ruling: Q1: Are you a resident of Australia for tax purposes? | A1: Yes.

Relevant facts and circumstances: Person A moved from a foreign country to Australia in MMM 19YY, where to the best of their knowledge, they have been an Australian tax resident since then. They have lived in Australia for the past X years. They visited Australia for a holiday, married and had a family. They became an Australian Permanent Resident in 19YY and an Australian Citizen in 20YY. Person A was born on DD MM 19YY. Person A is a citizen of both the foreign country and Australia. Person B was born on DD MM 19YY. Person B was born in Australia and is an Australian citizen. You have both moved to the foreign country for work purposes. On DD MM 20YY, person A departed Australia for the foreign country. On DD MM 20YY, person B departed Australia for the foreign country. Person B entered the foreign country under a visa, with approval to live and work without restrictions for X months from MM 20YY. Person B plans to work in the foreign country. In the X years prior to the ruling period, you both lived in Australia with holidays overseas. You have not spent any other time in any other country and holidays were never longer than X weeks. Your intentions Initially, you both intended to return to Australia after X years. However, you are now considering coming back to Australia after X months. In the period of the ruling, you are both planning on spending most of your time in the foreign country. There will be at least X trips back to Australia. One trip will be for a couple of weeks in MM 20YY/MM 20YY. A second trip will be family related. You also intend coming back to Australia at other major events. Whenever you return to Australia, you will have exclusive use of accommodation on person B's relative's property. When completing the incoming passenger card and visa documents, you state Australian as your residency status Family and social connections You have children and grandchildren. In Australia, person A was an instructor and also a X for a child's sports club. They also coached their child's sports team. Person A has a website. Neither of you maintain any professional, social or sporting connections in the foreign country. Neither of you has a drivers' license in any country other than Australia. Neither of you informed the Australian Electoral Commission or Medicare that you were departing Australia. In the foreign country, person A has relatives. You have not lived with them while being Australian residents, apart from visiting while on holidays in the foreign country. Accommodation and assets You are both staying with person A's relative in the foreign country. You both own X properties in Australia. X of these are rental properties. Another property was the one you lived in as your main residence. You are renting this property out on a X-month lease while you are in the foreign country. Details of your rented properties: • They have been rented to unrelated parties under normal commercial lease arrangements at normal commercial rent rates. • The renting of the properties is handled by a real estate agent. • You continue using the address of the residences as your address on bank statements. • You remain responsible for mortgage(s) on these residences and continue paying the mortgage(s) whilst you are overseas by sending money home. • You do not continue having mail sent to any of the addresses. You have a post office box that has been around for over X years and all mail, where practical is sent to that postal address. You have bank accounts in Australia which will be kept open while you are in the foreign country. You have substantial superannuation balances in Australia. You both have private health insurance which active but suspended while you are in the foreign country. Person A maintains their professional contracting license. You have sold both of your motor vehicles in Australia as it was impractical for you to keep them while you are in the foreign country. You have purchased a second-hand car in the foreign country. Neither of you own any assets outside of Australia, apart from the second-hand car. Your personal effects are stored in a storage unit in Australia. Your mail sent to your PO Box. Income and employment Person A has a full-time contract at the employer in the foreign country. This position has been taken to improve employment prospects in Australia going forward: • The employment is situated in the foreign country. • The employer's name is the employer. • The type of work you perform is X. • The contract period is for X years. • The employment has not been extended. A conversation would need to be had if you were to stay longer. However, you have both self-imposed a X year time limit your stay in the foreign country. • You are not performing the work remotely. Person A will have a job in Australia to return to after the X years. They can return to their employer in Australia after their time in the foreign country. Person B does not have a job in Australia to return to but will likely be looking for a job. Neither of you is a resident of any foreign country for taxation purposes. Neither you nor your spouse is a Commonwealth of Australia Government employee for superannuation (super) purposes. Neither you nor your spouse are you a member of the Public Sector Superannuation Scheme (PSS) which was established under the Superannuation Act 1990 . Neither you nor your spouse are an eligible employee in respect of the Commonwealth Superannuation Scheme (CSS) which was established under the Superannuation Act 1976 . Neither you nor your spouse are the spouse or a child under 16 of a person who is a member of the PSS or an eligible employee in respect of the CSS. Neither of you undertake any courses of study. Neither of you has advised any Australian financial institutions including any Australian companies with whom you have investments with that you are a foreign resident so that non-resident withholding tax can be deducted.

Relevant legislative provisions: Income Tax Assessment Act 1936 subsection 6(1) | Income Tax Assessment Act 1997 section 6-5 | Income Tax Assessment Act 1997 subsection 995-1(1)

Reasons for decision: Summary: You are both residents of Australia for tax purposes for the period of the ruling. | 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 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 ... [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 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 a resident of Australia under the resides test for the income years ended 30 June 20YY, 20YY and 20YY based on the following: • period of physical presence in Australia. Person A has lived in Australia since they moved here from the foreign country in 19YY. Person B was born in Australia and has lived here all their life. • intention or purpose of presence. Person A has lived and worked in Australia since moving here from the foreign country. Person B has lived here all their life. • behaviour while in Australia. You both married and raised a family while in Australia. You have children and grandchildren here. Person A was employed here. They became a permanent resident in 19YY and an Australian citizen in 20YY. Person B has lived here all their life. You both have had short overseas holidays returning to Australia each time to live in your family home. While overseas, you stayed with relatives. • family and business or employment ties. You both married and have children and grandchildren in Australia. You have family overseas who live independently. Person B is employed in Australia and has a job to return to with the same employer. • maintenance and location of assets. You both own rental properties in Australia, one of which was your main residence while you lived here. You maintain savings accounts and superannuation in Australia. You maintain (suspended) private health insurance in Australia. Your personal effects are in storage in Australia. You do not have any investments, property or own any other assets outside of Australia, apart from a second-hand car in the foreign country. • social and living arrangements. In Australia, person A was an instructor and also a X for a child's sports club. They also coached a child's sports team. Person A has a website and a valid contracting licence. Neither of you has a drivers' license in any country other than Australia. Neither of you informed the Australian Electoral Commission or Medicare that you were departing Australia. In the foreign country, person A has relatives. You are both staying with person A's relative in the foreign country. Otherwise, you have not lived with your foreign country relatives while being Australian residents, apart from visiting while on holidays in the foreign country. You do not maintain any professional, social, or sporting connections in the foreign country. Although the law only requires you to be considered a resident under one test, for completeness the other tests are also considered. | 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: Person A was born in the foreign country and their domicile of origin is the foreign country. They immigrated to Australia in 19YY and has lived here since then. They became a permanent resident in 19YY and an Australian citizen in 20YY. It is considered that they abandoned their domicile of origin and acquired a domicile of choice in 20YY, when they became an Australian citizen. Therefore, person A's domicile of choice is Australia and they are a resident of Australia under the domicile test. Person B was born and raised in Australia. Therefore, their domicile of origin is Australia and remains unchanged. They are 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 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: The Commissioner is not satisfied that your permanent place of abode is outside Australia because: • You are both living with relatives in the foreign country. • Person A will return to their Australian employer and the job they had previously. • You both have a main residence in Australia which is being rented while you are in the foreign country. • You maintain substantial assets in Australia (real estate, super). • Neither of you has advised the banks with which you have accounts that you are a foreign resident. • You both retain private health insurance, which is suspended while you are in the foreign country. • Neither of you informed the Australian Electoral Commission or Medicare that you were departing Australia. Therefore, you are 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: Person A departed Australia for the foreign country on DD MM 20YY. They were present in Australia for X days in the 20YY income year. Person B departed Australia for the foreign country on DD MM 20YY. They were present in Australia for X days in the 20YY income year. Both of you have been in Australia for 183 days or more in the income years ended 30 June 20YY. Therefore, you are residents of Australia the 183-day test for this income year unless the Commissioner is satisfied that your usual place of abode is outside Australia and not intend to take up residence in Australia. For the income years ended 30 June 20YY and 20YY, neither of you will be present in Australia for 183 days or more. Therefore, neither of you will be resident of Australia during these income years under the 183-day test. However, if you return to Australia after X months in the foreign country instead of X years as originally planned, you may be in Australia for more than 183 days in the 20YY income year and therefore a resident under the 183-day test for this income year. | Detailed Reasoning - Usual place of abode: In the context of the 183-day test, a person's usual place of abode is the place they usually live and can include a dwelling or a country. A person can have only one usual place of abode under the 183-day test. However, it is also possible that a person does not have a usual place of abode. This is the case for a person who merely travels through various countries without developing any strong connections. If a person has places of abode both inside and outside Australia, then a comparison may need to be made to determine which is their usual place of abode. When comparing two places of abode of a particular person, we will examine the nature and quality of the use which the person makes of each particular place of abode. It may then be possible to determine which is the usual one, as distinct from the other or others which, while they may be places of abode, are not properly characterised as the person's usual place of abode: Emmett J at [78] in Federal Commissioner of Taxation v Executors of the Estate of Subrahmanyam [2001] FCA 1836. | Detailed Reasoning - Application to your situation: The Commissioner is not satisfied that your usual place of abode is outside Australia for the 20YY income year based in the following: • You both lived for many years in your main residence in Australia before departure for the foreign country and will return to it when you return to Australia. • You are both living with relatives in the foreign country. | Detailed Reasoning - Intention to take up residency: To determine whether you intend to take up residence in Australia, we look at evidence of relevant objective facts. 'Intend to take up residency' does not merely mean intend to stay for a long time. It means intending to live here in such a manner that you would reside here. | Detailed Reasoning - Application to your situation: The Commissioner is satisfied that you did intend to take up residence in Australia for the 20YY income year because: • You were both living together for many years in your main residence in Australia until your departure for the foreign country in MM 20YY. • You will return to your Australian home upon your return to Australia after X years or a shorter period of X months. Therefore, you are a resident under this test for the 20YY income year. | 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: You both satisfy the resides, domicile and 183-day tests of residency and so are a resident of Australia for income tax purposes for the year ended 30 June 20YY. You both satisfy the resides and domicile tests of residency and so are a resident of Australia for income tax purposes for the income years ended 30 June 20YY and 20YY. If you return to Australia after X months in the foreign country instead of X years as originally planned, you may also past the 183-day test for the 20YY income year.