Simon – a new migrant who changed his mind
Facts
Simon migrated from England to Australia with his family on a permanent resident's visa.
Shortly after arriving in Sydney, he bought a house and secured a job with an accounting firm.
The children went to a local private school while his wife took up various leisure activities similar to those that she had been engaged in overseas.
Simon still owned an overseas property which the family lived in before migrating to Australia.
Four months after arriving, the family decided that they were unhappy here and returned to England for good.
At the time of departure they were still British citizens, as they did not stay in Australia long enough to qualify for citizenship – even if they had wanted to be naturalised.
Outcome – why is Simon considered an Australian resident?
Although Simon and his family were in Australia for only 4 months, they are considered Australian residents on the basis that they were residing here for the duration of their stay. This is despite the fact that Simon owned a family home overseas during that period.
Their intention of residing permanently in Australia was obvious through their actions of:
- obtaining a permanent resident's visa
- Simon getting a job
- the children going to school
- his wife engaging in activities that were similar to previous ones
- their purchasing a home and treating it as such.
Although the family was not physically present in Australia for long, they were displaying behaviour consistent with residing here from the moment they arrived.
These factors allow the family to satisfy the resides test. Therefore, it's not necessary to consider the statutory tests. The fact that they are British citizens all along is irrelevant in arriving at the decision.
Emily – teaching in Japan
Facts
Emily leaves Australia to work in Japan as a teacher of English.
She has a one-year contract, after which she plans to tour China and other parts of Asia before returning to Australia to resume work here.
During her time in Japan, she lives with a family who treat her as one of their own.
She rents out her property in Australia during her absence.
Emily is single. Her parents live interstate, and her brother has moved to France.
Outcome – why is Emily considered an Australian resident?
Even though Emily is residing in Japan, under the domicile test:
- her domicile is in Australia (a resident who has always lived in Australia will generally retain a domicile here when they are absent overseas, unless they choose to permanently migrate to another country)
- her permanent place of abode remains in Australia.
Gerhardt – a new migrant who hasn't quite left his old country
Facts
Gerhardt migrated from Sweden to Australia with his family.
He had to return to Sweden to see out a performance contract that had 2 years to go.
He departed one month after arriving and settling the family here.
In Sweden, he stayed in the family house that they had been living in before moving to Australia.
He also retained the family car so that he could travel around for his work in Sweden.
He used to play tennis with a local club in Sweden and, on his return, resumed his association with the club.
Although he intends to join his family in Australia for good at the end of his contract, he is leaving his options open in case he is able to secure another contract.
In the 9 months that he has been back in Sweden, he has only visited his family in Australia once.
Outcome – why is Gerhardt considered a foreign resident?
From the above facts, Gerhardt is a foreign resident for income tax purposes.
Test | This test is not satisfied because... |
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he was in Australia for only one month. | |
this does not apply in Gerhardt's circumstances. |
Bronwyn – an extended job overseas
Facts
Bronwyn, an Australian resident, has received a job offer to work overseas for 3 years, with the option to extend for another 3 years.
Bronwyn, her husband and 3 children decide to make the move.
They retain their property in Australia, as they intend to return one day.
The house will be rented out during their absence.
Bronwyn is uncertain whether she will extend the option to stay after 3 years, and will decide later, depending on how the family like the life there.
While overseas, they'll rent a house with an accommodation allowance provided under her contract.
Outcome – why is Bronwyn considered a foreign resident?
Test | This test is not satisfied because... |
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the length of Bronwyn's physical absence from Australia and the surrounding circumstances (such as establishing a home overseas with her family and renting out her family home in Australia) are not consistent with residing in Australia, even though she has retained the family home in Australia. | |
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this does not apply from the date of her departure for overseas. | |
this does not apply. |
Janine – combining work and travel
Facts
Janine is a British national who has longed to spend 12 months 'down under'. After saving for years, she takes 12 months leave from her work and departs for Australia. Although she travels with considerable savings, her intention is to spend at least part of her time working. She has obtained a working holiday visa enabling her to work for no more than 6 months with one employer.
Through a contact in Australia, she acquired work in Perth for the first 3 months. After that period, she decides to travel to the east coast via Adelaide. She spends a month in Adelaide where she works for 2 weeks and then continues her journey to Melbourne.
Once there, she meets some friends from back home. After working for a further 3 months, she decides to spend the balance of her time in Melbourne and uses her savings for living expenses. To keep costs down, she leases a house with 2 friends. At the end of her 12 months in Australia, she returns to the United Kingdom and resumes living in her house there, which she had been renting out while in Australia.
Outcome– why is Janine a foreign resident?
Although Janine obtains work, by travelling from place to place she hasn't established a pattern of habitual behaviour, even though she is physically present in Australia for 12 months and she co-leases a house. Janine's main purpose for being here is to have a holiday and she is merely supplementing her savings by working. Janine also fails to meet the 183-day test because she had a usual place of abode outside Australia and did not intend taking up residence in Australia.
Carleene – a visitor in search of work
Facts
Carleene is a 22 year old New Zealand resident who has graduated from university with a major in journalism. She decides to travel to Australia in the hope of finding suitable work. Although she has no firm intentions on arrival, she would like to stay in the country for 'a while', particularly if the right job comes along.
After 3 months in Australia with only casual employment as a waitress, Carleene returns to New Zealand, having been unsuccessful in finding suitable employment as a journalist.
Outcome – why is Carleene a foreign resident?
Carleene's stay is not sufficient to establish a pattern of habitual behaviour. On arrival, she is uncertain about her stay and has no other ties here. This conclusion would be further strengthened if she travelled to various cities in search of employment.
What to read or do next
For more general information about residency, read Your tax residency.
For information on the 4 residency tests, read:
- Residency – the resides test
- Residency – the domicile test
- Residency – the 183-day test
- Residency – the superannuation test.
To find out if your foreign income is exempt from paying tax, see Tax exempt income from foreign employment.