Private ruling: Residency
Date of advice: 9 June 2026
Published: 10 August 2026
Ruling period: Year ended DD MM 20YY | Year ended DD MM 20YY | Year ended DD MM 20YY | Year ended DD MM 20YY
Date scheme commenced: DD MM 20YY

Ruling: Q1: Are you a resident of Australia for tax purposes for the years ending DD MM 20YY to DD MM 20YY? | A1: No.

Relevant facts and circumstances: You were born in Country A. Your country of origin is Country A. You hold both Country A and Australian citizenship. You departed Australia on DD/MM/20YY to help your child with their children. Prior to your departure you were living on a permanent basis in City A, NSW, Australia. You returned to Australia on the following dates: DD MM 20YY - DD MM 20YY -DD days DD MM 20YY - DD MM 20YY - DD days DD MM 20YY - DD MM 20YY - DD days DD MM 20YY - DD MM 20YY - DD days DD MM 20YY - DD MM 20YY - DD days You returned to Australia to check on your properties and meet with your property managers and consult with your accountant. All visits were digitally recorded. You entered the Country B on a tourist visa. The tourist visa did not allow you to stay permanently in the Country B. You were granted permanent residency in Country B in MM 20YY. You stayed in Country B on the following dates: DD MM 20YY - DD MM 20YY DD MM 20YY - DD MM 20YY DD MM 20YY - DD MM 20YY DD MM 20YY - DD MM 20YY DD MM 20YY - DD MM 20YY While in the Country B you stayed with your child, child-in-law, and their X children at their home. You do not have and never had any assets in Country B, no motor vehicle, no household effects or bank accounts. Your spouse accompanied you overseas. Your spouse's health condition deteriorated significantly. You do not have Medicare coverage in the Country B. You sought medical care in Country A, where your wife could receive appropriate treatment and medical protection. You do not require a visa to enter Country A as you hold Country A citizenship and a Country A passport. In Country A, you own an apartment with your spouse and an old car. You provided a copy of the Council rates for the apartment. The rates account is held in your name. You do not have employment overseas. You own two residential properties in Australia: • an apartment • a townhouse: You lived at the townhouse when you were in Australia. Both properties are rented out while you live overseas. At the request of the property manager, you removed your household goods and personal effects from the townhouse in preparation for renting it out to tenants. You continue to receive rental income from Australia. The townhouse is currently rented. The apartment is vacant as you intend to sell it. Your children live and work in the Country A and are independent. You were previously a member of your local X club in Australia. You do not have any sporting affiliations or connections in Australia. In the Country B you usually socialise with people associated with your child and child-in-law. You simply follow the sporting activities in which your grandchildren participate. In Country A you are a member of a church choir. You regularly socialise with family members and long-standing friends in Country A. You do not hold memberships or have connections with any sporting clubs, associations, or other organisations in Country A. Your spouse was born in Country A and holds both Country A and Australian citizenship. You are not a contributing member of 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. You advised the Australian Electoral Office to have your name removed from the electoral roll. You advised your bank you are a foreign resident so that non-resident withholding tax could be deducted. You advised your Superannuation Funds you are a foreign resident. You notified your private health fund of your departure from Australia. Your Medicare remains active in Australia. You have not lodged any income tax returns in any country other than Australia. You stated visiting your child as the reason for going overseas when completing the Australian Immigration Outgoing passenger card. You did not have a capital gains tax event I1 happen to your assets because you ceased to be an Australian resident.

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

Reasons for decision: Summary: You do not satisfy any of the four tests of residency and so are not a resident of Australia for tax purposes for the years ended DD MM 20YY, DD MM 20YY, DD MM 20YY and DD MM 20YY under section 995-1 of the Income Tax Assessment Act 1997 (ITAA 1997). | Detailed Reasoning - Application to your situation: 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... 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 not a resident of Australia under the resides test for the period DD MM 20YY, DD MM 20YY, DD MM 20YY and DD MM 20YY based on the following: You departed Australia on DD MM 20YY and you returned to Australia to check on your properties and meet with your property managers and consult with your accountant on the following dates: DD MM 20YY - DD MM 20YY - DD days DD MM 20YY - DD MM 20YY - DD days We consider that your circumstances are not consistent with you residing in Australia. 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 parent 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 Country A and your domicile of origin is Country A. You immigrated to Australia and became an Australian citizen. It is considered that you did not abandon your domicile of origin in Country A and acquired a domicile of choice in Australia. Although you are a dual citizen of the Country A and Australia your principal residence is in Country A and you have only travelled back to Australia briefly to check on your properties and meet with your property managers and consult with your accountant Therefore, your domicile is Country A and you are not 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 satisfied that your permanent place of abode is outside Australia because: • In Country A, you own an apartment with your spouse and an old car. • You advised the Australian Electoral Office to have your name removed from the electoral roll. • You advised your bank you are a foreign resident so that non-resident withholding tax could be deducted. • You advised your Superannuation Funds you are a foreign resident. | 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 income years DD MM 20YY, DD MM 20YY, DD MM 20YY and DD MM 20YY. Therefore, you are not a resident under this test. | 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 satisfied that your usual place of abode was outside Australia for the relevant income years DD MM 20YY, DD MM 20YY, DD MM 20YY and DD MM 20YY based in the following: • You returned to Australia for short periods to check on your properties and meet with your property managers and consult with your accountant. • You returned to Austral DD MM 20YY on the following dates: DD MM 20YY - DD MM 20YY - DD days DD MM 20YY - DD MM 20YY - DD days DD MM 20YY - DD MM 20YY - DD days • In Country A, you live in your own an apartment with your spouse. | 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 do not intend to take up residence in Australia for the relevant income years DD MM 20YY, DD MM 20YY, DD MM 20YY and DD MM 20YY because: • Your principal place of residence is in Country A. • Country A you are a member of a church choir. • You returned to Australia for short periods to check on your properties and meet with your property managers and consult with your accountant. | 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 years ended DD MM 20YY, DD MM 20YY, DD MM 20YY and DD MM 20YY.