Private ruling: Residency
Date of advice: 31 March 2017
Published: August 2017
Ruling period: Year ended 30 June 2016 | Year ending 30 June 2017 | Year ending 30 June 2018 | Year ending 30 June 2019
Date scheme commenced: 1 July 2015

Ruling: Q1: Did you become a non-resident of Australia for taxation purposes from when you departed Australia on XX 2016? | A1: Yes.

Relevant facts and circumstances: General You have dual citizenship of Australia and of foreign country A. Your country of origin is foreign country A. You moved to Australia from foreign country A and obtained citizenship in Australia. You accepted a permanent position in a foreign country B with an open ended contract. You permanently departed Australia to commence your employment in foreign country B on XX 2016. Your spouse joined you in foreign country B on XX 2016. Your spouse remained in Australia to assist with the sale of your home in Australia. Neither you nor your spouse has any plans to return to Australia on a permanent basis. You and your spouse have adult children who reside in separate rental accommodation in Australia. You have not been granted permanent residency by any country. Your foreign country B visa was approved. The visa does not grant you permanent residency. It is initially for a period of 2 years after which it can be renewed for 3 further years. It was supplied by your employer in foreign country B. You informed the Australian Electoral Commission (but not Medicare) that you were departing Australia. You did not advise your private health insurance provider to have your policy suspended or cancelled. A visit took place to your private health insurer to discuss you and your spouse's relocation to foreign country B but you still need a child to be covered by the insurance policy. Based on the advice from the insurer the policy was maintained. The insurer noted the circumstances of the policy holders. You will lodge foreign country B income tax returns while you are overseas. You will you state that you are a resident of foreign country B. You returned to Australia during the following periods for the reasons noted: ● Period 1 - business travel connected to foreign country B employment ● Period 2 - travel to visit family ● Period 3 - travel to visit family ● Period 4 - business travel connected to foreign country B employment On your return visits to Australia, you resided in your Australian property until sale and then with your children. You completed your immigration cards on departure from Australia to foreign country B as "Australian resident permanently departing". Accommodation You and your spouse engaged a real estate agent to sell your Australian property and marketing of the property began. The sale of this residence was completed. Under company policy, you and your spouse were provided with temporary accommodation in foreign country B for the first X days. You and your spouse entered into a long term lease on a property in foreign country B and commenced tenancy. Your accommodation in foreign country B is a condominium. This lease is in yours and your spouse's names and is for your exclusive use. You have supplied a copy of the lease. The term of the lease is two years, as per the lease agreement. Assets You and your spouse's assets in Australia are or were the following: ● Family home. It was sold. ● Australian bank accounts - you and your spouse have a savings account and credit cards in Australia. ● Motor vehicles in Australia registered to you and your spouse, maintained in storage. ● Australian Superannuation accounts are held but no contributions have been made since you left Australia. You and your spouse shipped your household belongings to foreign country B. You and your spouse's foreign assets include the following: ● Foreign country A bank account. ● Foreign country B bank account. ● Employee share awards. You will not make any investments in Australia while you were overseas. Your only income from Australian sources is minimal bank interest. You have not advised any Australian financial institutions with whom you have investments that you are a foreign resident so that non-resident withholding tax can be deducted. Your bank will be notified of this. Social connections You are not a member of any professional organisations in Australia or in foreign country B. You have not obtained any overseas qualifications. Neither you nor spouse is an active member of an Australian Commonwealth Government superannuation fund. You do not have a position or job being held for you in Australia.

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: Section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997) provides that where you are a resident of Australia for taxation purposes, your assessable income includes income gained from all sources, whether in or out of Australia. However, where you are a foreign resident, your assessable income includes only income derived from an Australian source. The terms 'resident' and 'resident of Australia', in regard to an individual, are defined in subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936). The definition provides four tests to ascertain whether a taxpayer is a resident of Australia for income tax purposes. These tests are: ● the resides test ● the domicile test ● the 183 day test ● the superannuation test. The first two tests are examined in detail in Taxation Ruling IT 2650 Income Tax: Residency - permanent place of abode outside Australia (IT 2650) . The primary test for deciding the residency status of an individual is whether the individual resides in Australia according to the ordinary meaning of the word resides. However, where an individual does not reside in Australia according to ordinary concepts, they may still be a resident of Australia for tax purposes if they meet the conditions of one of the other three tests. | Detailed Reasoning - The resides (ordinary concepts) test: The outcomes of several Administrative Appeals Tribunal (AAT) cases have determined that the word ' resides' should be given the widest meaning and there have been a number of factors identified which can assist in determining if a particular taxpayer is a resident of Australia under this test. Recent case law decisions have considered the following factors in relation to whether the taxpayer was a resident under the 'resides' test: (i) Physical presence in Australia (ii) Nationality (iii) History of residence and movements (iv) Habits and "mode of life" (v) Frequency, regularity and duration of visits to Australia (vi) Purpose of visits to or absences from Australia (vii) Family and business ties to different countries (viii) Maintenance of place of abode. These factors are similar to those which the Commissioner has said are relevant in determining the residency status of individuals in IT 2650 and Taxation Ruling TR 98/17 Income tax: residency status of individuals entering Australia . It is important to note that not one single factor is decisive and the weight given to each factor depends on individual circumstances. There are several factors outlined above which indicate that you have ceased to be a resident of Australia, specifically: ● Your intention is to remain working in foreign country B on your local foreign country B employment contract. ● You and your spouse do not intend to return to live in Australia at any time in the near future. ● You and your spouse had a clear intention to permanently depart Australia when you commenced full time employment in foreign country B. This is supported by your employment contract. ● You will only return to Australia on an infrequent basis to spend time with your family and meet occasional work responsibilities of your foreign country B employment. ● Your salary is paid into your foreign country B bank account. ● Your employment and business ties are outside of Australia as your employment services will be performed in foreign country B. ● You do not have memberships with any Australian professional organisations or clubs. ● You have completed your immigration card on departure from Australia to foreign country B as “Australian resident departing permanently”. Based on a consideration of all of the factors outlined above, you are not a resident of Australia according to ordinary concepts as you will not maintain a continuity of association with Australia for the relevant period. | Detailed Reasoning - The domicile and permanent place of abode test: Under this test, a person is a resident of Australia for tax purposes if their domicile is in Australia, unless the Commissioner is satisfied that their permanent place of abode is outside of Australia. | Detailed Reasoning - Domicile: A person's domicile is generally their country of birth. This is known as a person's 'domicile of origin'. A person may acquire a domicile of choice in another country if they have the intention of making their home indefinitely in that country. The intention needs to be demonstrated in a legal sense, for example, by way of obtaining a migration visa, becoming a permanent resident or becoming a citizen of the country concerned. In your case, you were born in foreign country A and have citizenship of that country. You moved to Australia and became a citizen of Australia also. Therefore, your domicile of origin was foreign country A and you changed your domicile to Australia when you moved to Australia and acquired Australian citizenship. Your domicile will still be Australia while you are living and working in foreign country B as you have not indicated that you will be taking any legal steps to change your domicile to that country. | Detailed Reasoning - Permanent place of abode: The expression 'place of abode' refers to a person's residence, where they live with their family and sleep at night. In essence, a person's place of abode is that person's dwelling place or the physical surroundings in which a person lives. A permanent place of abode does not have to be 'everlasting' or 'forever'. It does not mean an abode in which you intend to live for the rest your life. An intention to return to Australia in the foreseeable future to live does not prevent you in the meantime setting up a permanent place of abode elsewhere. It is clear from the case law that a person's permanent place of abode cannot be ascertained by the application of any hard and fast rules. It is a question of fact to be determined in the light of all the circumstances of each case. We are however of the view that you and your spouse can successfully demonstrate that their permanent place of abode for the foreseeable future is in foreign country B. This is supported by the following factors: ● You have sold your home in Australia. ● You and your spouse have established a home in foreign country B by entering into a long term lease on a property for your exclusive use. ● You do not have a property available to use in Australia though you may stay with your children on your return trips to Australia. The Commissioner is satisfied you have a permanent place of abode outside of Australia. Therefore, you are not a resident of Australia under the 'domicile and permanent place of abode' test of residency for the period of the ruling. | Detailed Reasoning - The 183-day test: Under the 183 day test you are considered a resident of Australia if you are present in Australia for a total period of more than half of the year of income, i.e. 183 days, unless the Commissioner is satisfied that your usual place of abode is outside Australia and you do not intend to take up residence in Australia. You have not been or will not be present in Australia for a total period of more than half of a year of income. Therefore you are not a resident of Australia under the 183-day test. | Detailed Reasoning - The superannuation test: An individual is considered to be a resident if that person is eligible to contribute to the Public Service Superannuation Scheme (PSS) or the Commonwealth Service Superannuation Scheme (CSS), or that person is the spouse or child under 16 of such a person. To be eligible to contribute to those schemes, you must be or have been a Commonwealth Government employee. You have stated that neither you nor your spouse is eligible to contribute to the PSS or the CSS. Further, you are more than 16 years of age. Therefore, you are not a resident of Australia under the superannuation test for the period of the ruling. | Detailed Reasoning - Your residency status: As you are not a resident of Australia under any of the tests of residency outlined in subsection 6(1) of the ITAA 1936 and subsection 995-1(1) of the ITAA 1997, you are not an Australian resident for taxation purposes for the period of the ruling.