Residency: s995-1 ITAA 1997 provides that an Australian resident

means a resident in accordance with the ITAA 1936.

resident or resident of Australia means: (i) whose domicile is in
Australia, unless the Commissioner is satisfied that his permanent
place of abode is outside Australia; (ii) who has actually been in
Australia, continuously or intermittently, during more than one half
of the year of income, unless the Commissioner is satisfied that his
usual place of abode is outside Australia and that he does not intend
to take up residence in Australia; or (iii) who is: (A) a member of the
superannuation scheme established by deed under the
Superannuation Act 1990 (Cth); or(B) an eligible employee for the
purposes of the Superannuation Act 1976 (Cth); or (C) the spouse, or
a child under 16, of a person covered by sub-paragraph (A) or (B)
Residency of a person other than a company: Section 6(1) of
the ITAA36 provides two definitions of residents. 1 The
primary test - being the common law concept of resident. 2 The
second test comprises three statutory tests.
There are 4 tests which determine whether an individual
taxpayer is a resident of Australia for taxation purposes. 1.
The common law test 2. The domicile test 3. The 183-day test 4.
The superannuation fund test. To be a resident individual at least
one of the tests must be satisfied.
Residency of a person other than a company - common law
tests: Australian courts take a number of factors into account: 1.
Physical presence of the person in Australia for some part of the
year; 2. The nationality of the person; 3. The persons history of
residence and movements (e.g. maintenance of a home) 4. The
persons mode of life 5. Employment 6. Business and social relations
7. The presence of an immediate family 8. If the person is a visitor to
Australia, the frequency, regularity, duration and purpose of the
visits. Leading cases: FCT v Miller (1946) 73 CLR 93. FCT v
Applegate 79 ATC 4307, Levene v IRC (1928) AC 217, IRC v Lysaght
(1928) AC 234, Joachim v FCT (2002) 50 ATR 1072
TR 98/17: Relevant factors: 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 bank
accounts in Australia, place of education of the taxpayer's children,
family ties and so on.
Resides - physical presence: The leading cases are those of FCT
v Applegate 79 ATC 4307 and FCT v Miller (1946) 73 CLR 93. A
reference to Applegates case - in which the Court determined that a
taxpayer could not be considered to be residing in Australia as he
was not physically present, having a permanent place of abode in
Vanuatu. In Millers case the High Court held that a man resides
where he sleeps and lives, and thus Miller was a non-resident.
Resides - Habits and mode of life; Resides Nationality: The
leading case is that of Levene - refer above. Rowlatt J noted that a
person is ordinarily resident in a country where the ordinary course
of life is such as to disclose residence in that country. Levene was
habitually in England and belonged there. Nationality: This factor is
usually only used in borderline cases.

Second Test Domicile: There are two parts to this test to

determine residency: 1. a persons domicile must be in Australia;
and 2. the Commissioner is satisfied that the persons permanent
place of abode is not overseas. Domicile is a legal concept - and has
two main forms which are: 1. domicile of origin which is obtained by
implication of law and is acquired at birth, involving an adoption of
either the childs father or childs mothers domicile. It cannot be
changed; and 2. domicile of choice which is the place where the
person has a fixed permanent they intend to return to after being
away.
Domicile - permanent place of abode: The courts have
considered the following factors to be of importance when
determining permanent place of abode:1. intention as to length of
stay; 2. actual length of stay; 3. abandonment of place of abode in
Australia; 4. acquisition of place of abode outside Australia; and
intention to make place of abode home.
Residency Company: a company which is incorporated in
Australia, or which, not being incorporated in Australia, carries on
business in Australia, and has either its central management and
control in Australia, or its voting power controlled by shareholders
who are residents of Australia.So, company must satisfy one of the
three tests.1. Incorporation 2. Central Management and Control 3.
Controlling shareholders
Company residency? First test: If a company is incorporated in
Australia then it is a resident. There is no need for further inquiry.
Incorporation is a question of fact. Second test: Otherwise if it
carries on business in Australia and has centralised management in
Australia it is a resident. Again, a question of fact.See TR 2004/15;
Koitaki Para Rubber Estates Ltd v FCT (1960) 64 CLR 15, 2 AITR 167
(mere day to day control over operations not sufficient, if the control
is subject to monitoring by head office overseas)
and Malayan Shipping Co. Ltd v FCT (1946) 3 AITR 258.