To be an Aussie non-resident for Tax, or not?

KhunHeineken · July 5

The ATO have a residency tool. Go to the tool and check a few boxes to see how the ATO classifies you.

https://www.ato.gov.au/calculators-and-tools/tax-return-work-out-your-tax-residency

Pattaya57 · July 6

9 hours ago, KhunHeineken said:

The ATO have a residency tool. Go to the tool and check a few boxes to see how the ATO classifies you.

https://www.ato.gov.au/calculators-and-tools/tax-return-work-out-your-tax-residency

That ATO tool is useless as pretty much always gives the answer of:

"This tool is unable to determine your residency status for tax purposes after you leave Australia"

It all comes down to "intent" of an individual which the ATO tool can't calculate. Here's 2 ways I could go which are both legal declarations of the same situation (as long as I stick to my story)

Australian non-resident

I flew to Thailand on a non-imm O retirement visa and live in my Thailand condo. I intend to retire in Thailand indefinitely.

Australia Resident

I am on a 1 year overseas holiday whereby I have rented out my property in Aus for 12 months and put all of my stuff in storage. I am staying in my Thai condo that has been my holiday property for 10+ years. I intend to return to my Aus property after 1 year holiday (I can then decide to extend my holiday for another year, etc.)

Edited July 6 by Pattaya57

Nemises · July 6

40 minutes ago, Pattaya57 said:

Australia Resident

I am on a 1 year overseas holiday whereby I have rented out my property in Aus for 12 months and put all of my stuff in storage. I am staying in my Thai condo that has been my holiday property for 10+ years. I intend to return to my Aus property after 1 year holiday (I can then decide to extend my holiday for another year, etc.)

^^^ good 👍

or:

Australia Resident

- if you don’t own an Australian property

I am on a 1 year overseas holiday in Thailand. My stuff is in storage at [insert name of Aus relative or friend]’s house. I do not own any property nor have a lease in Thailand because I am constantly travelling around Thailand. I intend to return to Australia next year and decide then if I will stay or go travelling overseas again.

Edited July 6 by Nemises

KhunHeineken · July 6

2 hours ago, Pattaya57 said:

That ATO tool is useless as pretty much always gives the answer of:

"This tool is unable to determine your residency status for tax purposes after you leave Australia"

It all comes down to "intent" of an individual which the ATO tool can't calculate. Here's 2 ways I could go which are both legal declarations of the same situation (as long as I stick to my story)

Australian non-resident

I flew to Thailand on a non-imm O retirement visa and live in my Thailand condo. I intend to retire in Thailand indefinitely.

Australia Resident

I am on a 1 year overseas holiday whereby I have rented out my property in Aus for 12 months and put all of my stuff in storage. I am staying in my Thai condo that has been my holiday property for 10+ years. I intend to return to my Aus property after 1 year holiday (I can then decide to extend my holiday for another year, etc.)

Strange.

I just used the tool, twice, and got a definitive answer both times.

The first time I answered truthfully and was classified a non resident.

The second time I answered untruthfully and was classified a resident.

Perhaps try a different browser.

I completely agree with your assessment. Currently, it's up to one's "intention" and "appearance" that they will return to Australia. The ATO can not disprove one's "intention" in Court, and maintaining a property and "ties" in Australia further strengthens one's case against an ATO ruling because it "appears" one will return.

Of course, selling up, moving overseas, and not returning to Australia for several years means the ATO has a strong case to argue that one in these circumstances is definitely a non resident, and it would be very difficult for someone to argue otherwise.

Your assessment also describes, exactly, why the proposed changes were drafted. I takes away the "choice" for one to choose whether they want to be a resident or non resident of Australia for tax purposes.

I am definitely a non resident, but claim I am a resident, and have done so for years. I know many friends here do the same. Currently, there's not much the ATO can do about people like us, and we are many, all across the world.

Then, there are people still working, who also choose if they want to be a resident or non resident, based on which one is more financially beneficial to them.

Under the current 90 year old laws, the end result is, the ATO misses out taxing people like me at non resident rates, and taxing workers at resident rates. This is because, currently, the non resident can be a resident, and the resident can be a non resident.

The proposed changes will see the system change to a physical presence and time based model, with no loopholes.

We always knew the party was going to end. That time is now sooner, rather than later. Once the proposed changes are legislated, 183 days later, you can expect some contact from the ATO.

KhunHeineken · July 6

2 hours ago, Nemises said:

^^^ good 👍

or:

Australia Resident

- if you don’t own an Australian property

I am on a 1 year overseas holiday in Thailand. My stuff is in storage at [insert name of Aus relative or friend]’s house. I do not own any property nor have a lease in Thailand because I am constantly travelling around Thailand. I intend to return to Australia next year and decide then if I will stay or go travelling overseas again.

Under the current laws, this would work, and many would spin this yarn to the ATO if contacted, but the proposed changes will take away the ability for this yarn to be even considered by the ATO.

You have been outside of Australia for 183 days, therefore, a non resident for tax purposes. No review. No appeal. End of story.

It's interesting that Thailand has the 180 day law, as do many other countries, yet many on this forum have stated they don't think Australia will implement a similar model.

KhunHeineken · July 6

On 7/4/2024 at 6:44 AM, Fat is a type of crazy said:

My point is that the way you have worded it is over 183 days out of Australia is a non-resident full stop but then you say between 45 and 183 days in Australia can still be a resident. That's a contradiction. But I get the gist of what you are saying and if one day it happens..

No contradiction.

Again:

If you are outside of Australia for more than 183 days, you will be deemed a non resident for tax purposes. (called the "bright line test")

If you are inside of Australia between 45 days and 183 days, you must meet two out of four "factor tests." (factor tests previously linked)

If you are inside Australia 45 days or less, you are a non resident for taxation purposes.

Where's the contradiction in the above?

For most Aussie expats, it's the 183 day rule that would apply to them, and yes, it will be a "full stop" rule.

John49 · July 6

On 6/28/2024 at 2:03 PM, Pattaya57 said:

In case people don't know, you only inform the ATO you're a non-resident during your tax return. So as I'm planning to elect non-resident from 14-Oct-24, I just fill out non-resident for 259 days when I file my 2025 tax return, so pretty easy.

What I'm finding not easy is how to inform the banks that I'm a non-resident so that they can apply the 10% withholding tax. Note that you also have to verify an overseas address or they will withhold the top tax rate of 45% instead of 10%. Of my 3 banks:

Westpac - can add overseas address online and change tax residency, but only if you say yes to being a tax resident of another country (I'm not yet a tax resident of Thailand)

Macquarie - says call a 1800 number to add overseas adress which I don't think you can call from overseas? No option to elect non-resident

NAB - Residence can change online but if you dont have another country's tax id number you have to call Australia, while to add an international address you have to call a different Australian number

I find it ridiculous that you have to call Australian banks from Thailand, with all the expected long hold times, just to inform your change to non-resident tax status and add an international address.

Has anyone had emails accepted to change your bank tax status? Or any other way not requiring long phone calls?

I have a Westpac bank account and have declared myself ‘non-resident for tax purpose in Australia’ for many years.

Westpac did not ask for specifics and I paid 10% withholding tax for many years.

Just looking at my old emails from Westpac, things changed in 2021.

They become very specific and there were many exchanged emails as I did not really know what they wanted from me, or more precisely, what was I getting into by giving them my information and maybe too much information.

Ultimately, they threaten to freeze my bank account unless they received required information.

I was requested to make a phone call – that was out of the question for me - "ridiculous" as stated above.

Their last request was as follows:

We are asking about your Foreign Tax liabilities. In this case, Thailand. If you are liable to pay taxes in Thailand, we require that Tax Identification Number (TIN) for Thailand. This is the same, if you are liable to pay taxes in any other country, other than Australia. If you are not liable to pay taxes in that country, you must clearly state so on the form. I have attached another blank form for you.

If you have any further questions, please feel free to give us a call on 1300 725 863.

Kind Regards,

Risk Analyst

Financial Crime & Fraud Prevention

PO Box 30

Parramatta NSW 2124

I supplied a Thai TIN and they replied:

Thank you for your email and the information provided in regards to your Foreign Tax Residency.

We have received everything we need to be able to successfully update your Foreign Tax status in our systems, and no further action is required from you.

Reading quickly through this thread, it seems that many want to be resident in Australia for tax purposes – I’m the opposite as have no submitted a tax return since 2012 (and not in Australia), as retired and travelling since 2012.

My financial records are limited and messy, especially buying and selling shares.

I’m converting to deposit accounts to make it easy to complete my future Australian tax return.

I am have visited Australia less than 45 days a year to keep my non-residency.

I thought that this was to be the new ruling, anything beyond 45 day and you are automatically resident?

Now it’s possibly “if proposed changes are passed, basically, 183 days inside Australia, resident, 183 days outside Australia, non-resident.”?

I see a contradiction in the other scenario - statements about ‘between 45 and 183 days’:

"Under 45 days inside Australia, non resident.

Over 45 days but under 183 days inside Australia, one must meet two out of the four factor tests.

Over 183 days outside Australia, non resident."

It is possible to satisfy both the second and third criteria - which one governs?

Does anyone have experience of returning to Australia and filing a first tax return after many years overseas?

I've heard there's potential to go back up to 5 or 6 years on your financial data.

I think banks can provide statements for up to a similar period - so it makes sense.

It would be a nightmare if I had try to reproduce financial records for such a long period of time.

KhunHeineken · July 6

On 7/4/2024 at 9:44 AM, Pattaya57 said:

Just to point out the actual 45 day proposed rule is "you will be a non-resident if you spend less than 45 days in Australia this income year, and less than 45 days in Australia in each of the two previous income years."

So basically you can do one 45 day trip in any 3 year period to retain Australian residency. I actually wish the proposed rule did come out as I'd be good for 2024-26 tax returns as I've done 45+ days in Aus this tax year. Then I just need to book a 6 week holiday in 2027 and be good for another 3 years.

As mentioned, you typical Aussie expat hasn't returned to Australia for some years, so it's the 183 days "bright line test" that will be applicable to most.

These expats would have to return to Australia and reestablish residency, and then implement a system similar to what you have mentioned. Probably to difficult and costly for many.

Nemises · July 6

30 minutes ago, KhunHeineken said:

Under the current laws, this would work, and many would spin this yarn to the ATO if contacted, but the proposed changes will take away the ability for this yarn to be even considered by the ATO.

You have been outside of Australia for 183 days, therefore, a non resident for tax purposes. No review. No appeal. End of story.

If the “proposed changes” ever do happen (yawn), then I will simply return to Australia for 46 days within the 183 days and begin a new holiday to Thailand again.

Edited July 6 by Nemises

KhunHeineken · July 6

10 minutes ago, John49 said:

I have a Westpac bank account and have declared myself ‘non-resident for tax purpose in Australia’ for many years.

Westpac did not ask for specifics and I paid 10% withholding tax for many years.

Just looking at my old emails from Westpac, things changed in 2021.

They become very specific and there were many exchanged emails as I did not really know what they wanted from me, or more precisely, what was I getting into by giving them my information and maybe too much information.

Ultimately, they threaten to freeze my bank account unless they received required information.

I was requested to make a phone call – that was out of the question for me - "ridiculous" as stated above.

Their last request was as follows:

We are asking about your Foreign Tax liabilities. In this case, Thailand. If you are liable to pay taxes in Thailand, we require that Tax Identification Number (TIN) for Thailand. This is the same, if you are liable to pay taxes in any other country, other than Australia. If you are not liable to pay taxes in that country, you must clearly state so on the form. I have attached another blank form for you.

If you have any further questions, please feel free to give us a call on 1300 725 863.

Kind Regards,

Risk Analyst

Financial Crime & Fraud Prevention

PO Box 30

Parramatta NSW 2124

I supplied a Thai TIN and they replied:

Thank you for your email and the information provided in regards to your Foreign Tax Residency.

We have received everything we need to be able to successfully update your Foreign Tax status in our systems, and no further action is required from you.

Reading quickly through this thread, it seems that many want to be resident in Australia for tax purposes – I’m the opposite as have no submitted a tax return since 2012 (and not in Australia), as retired and travelling since 2012.

My financial records are limited and messy, especially buying and selling shares.

I’m converting to deposit accounts to make it easy to complete my future Australian tax return.

I am have visited Australia less than 45 days a year to keep my non-residency.

I thought that this was to be the new ruling, anything beyond 45 day and you are automatically resident?

Now it’s possibly “if proposed changes are passed, basically, 183 days inside Australia, resident, 183 days outside Australia, non-resident.”?

I see a contradiction in the other scenario - statements about ‘between 45 and 183 days’:

"Under 45 days inside Australia, non resident.

Over 45 days but under 183 days inside Australia, one must meet two out of the four factor tests.

Over 183 days outside Australia, non resident."

It is possible to satisfy both the second and third criteria - which one governs?

Does anyone have experience of returning to Australia and filing a first tax return after many years overseas?

I've heard there's potential to go back up to 5 or 6 years on your financial data.

I think banks can provide statements for up to a similar period - so it makes sense.

It would be a nightmare if I had try to reproduce financial records for such a long period of time.

The 183 days outside of Australia will be what they call a "bright line test." If they were to allow someone who is outside of Australia for more than 183 days to still argue they are a resident for tax purposes, then there's no point drafting the proposed changes and passing them into legislation. They would be no better than the current 90 year old laws. Therefore, outside of Australia for 183 days you will automatically be deemed a non resident for tax purposes.

Stay inside Australia between 45 days and 183 days, in order to remain a tax resident, you must also then meet two out of the four factor tests. If you can, then you can remain a tax resident. If you can't, you will be deemed a non resident.

Stay under 45 days in Australia and your will automatically be deemed a non resident.

To you also, where's the contradiction in the above?

It's a simple physical presence and time based model, based on days and geographic location.

KhunHeineken · July 6

15 minutes ago, Nemises said:

If the “proposed changes” ever do happen (yawn), then I will simply return to Australia for 46 days within the 183 days and begin a new holiday to Thailand again.

That's definitely one scenario I am looking at.

I could do 46 days in Australia, and easily meet the factor tests, however, after meeting with expat workers and hearing their concerns, Labor has said they are looking at changing the days possibly to 60, but probably to 90 days, in line with other countries. 9link previously provided)

That's 3 months in Australia every year. That would not be nice.

Would you do 3 months in Australia every year?

How many Aussie expats could even do the 46 days?

Edited July 6 by KhunHeineken

Nemises · July 6

21 minutes ago, KhunHeineken said:

Labor has said they are looking at changing the days possibly to 60, but probably to 90 days,

“Looking at”

”possibly”

”probably”

all in the one sentence!

23 minutes ago, KhunHeineken said:

Would you do 3 months in Australia every year?

Will worry about that IF and when that time ever comes. Until then, will keep laughing at the scaremongering 🤣

Pattaya57 · July 6

33 minutes ago, Nemises said:

If the “proposed changes” ever do happen (yawn), then I will simply return to Australia for 46 days within the 183 days and begin a new holiday to Thailand again.

Yep, proposed rule is only 45 days in Aus in a tax year, within the last 3 years, so piece of cake. Leaving Australia first time you're good for 3 years, then simply do a 45 day trip to Aus and good for another 3 years. If anything, the proposed rule makes it easier to stay a resident as that's up to 6 years covered with just one 45 day trip back to Aus

Fat is a type of crazy · July 6

1 hour ago, KhunHeineken said:

No contradiction.

Again:

If you are outside of Australia for more than 183 days, you will be deemed a non resident for tax purposes. (called the "bright line test")

If you are inside of Australia between 45 days and 183 days, you must meet two out of four "factor tests." (factor tests previously linked)

If you are inside Australia 45 days or less, you are a non resident for taxation purposes.

Where's the contradiction in the above?

For most Aussie expats, it's the 183 day rule that would apply to them, and yes, it will be a "full stop" rule.

I am simply taking it from the words you have written on a few occasions.

1 You can only be inside or outside of Australia.

2 Let us say you are in Australia for 100 days and outside for 265 days.

3 Your first test says - in your words - if you are outside of Australia for 183 days or more you are a non resident. You don't say to look at other tests - simply you are a non resident. In this example you are outside for 265 so are a non-resident.

4 Your second test says if you are inside between 45 and 183 days - outside more than 183 days - you have to meet certain tests to be a resident. Based on test 2 you are inside for 100 days and let us say you can pass those tests so you are a resident.

If you are talking about non consecutive days or separate periods within a year then you need to note that.

If you reply it is appreciated if you please don't repeat the same words - address the specific potential contradiction.

Edited July 6 by Fat is a type of crazy

KhunHeineken · July 6

11 minutes ago, Nemises said:

“Looking at”

”possibly”

”probably”

all in the one sentence!

Will worry about that IF and when that time ever comes. Until then, will keep laughing at the scaremongering 🤣

https://www.afr.com/policy/tax-and-super/assistant-treasurer-flags-new-tax-residency-rules-20220826-p5bd1v

"Assistant Treasurer Stephen Jones told an Australian Chamber of Commerce event in Singapore this week the new rules for deciding Australian tax residency were in “the government’s in-tray” ahead of the October budget, and the day limit was “being looked at”.

Read the article. It's obvious they are considering raising the day limit, not lowering it.

The current laws are 90 years old. They can't remain in place forever. The previous Liberal government proposed the changes, and the above article shows Labor hasn't binned them.

Hardly scaremongering. Just a matter of time. Thailand has the 180 day law. What's makes you think Australia would NEVER do similar?

Pattaya57 · July 6

1 hour ago, KhunHeineken said:

If you are outside of Australia for more than 183 days, you will be deemed a non resident for tax purposes. (called the "bright line test")

You've got the "bright line test" definition wrong, which is why all your posts have a contradiction. It is:

"a person who is physically present in Australia for 183 days or more in any income year will be an Australian tax resident"

Fat is a type of crazy · July 6

Just now, Pattaya57 said:

You've got the "bright line test" definition wrong, which is why all your posts have a contradiction. It is:

"a person who is physically present in Australia for 183 days or more in any income year will be an Australian tax resident"

Now it makes sense.

Ralf001 · July 6

What sorta coin is needed to parked up up in a bank account to be collecting 45k in interest ?

KhunHeineken · July 6

8 minutes ago, Fat is a type of crazy said:

1 You can only be inside or outside of Australia.

At any one point in time, yes, correct.

8 minutes ago, Fat is a type of crazy said:

3 Your first test says - in your words - if you are outside of Australia for 183 days or more you are a non resident. You don't say to look at other tests - simply you are a non resident. In this example you are outside for 265 so are a non-resident.

Yes.

Under the proposed changes, can you tell me how someone outside of Australia for more than 183 days will be able to argue they are still a resident for tax purposes?

10 minutes ago, Fat is a type of crazy said:

4 Your second test says if you are inside between 45 and 183 days - outside more than 183 days - you have to meet certain tests to be a resident. Based on test 2 you are inside for 100 days and let us say you can pass those tests so you are a resident.

You answered your own question.

You can't be in two places at once. You can only be inside, or outside of Australia at any point in time.

Say you do 100 days inside Australia, that means you are doing about 265 days outside Australia. The 183 days is what they are calling a "bright line test." No factor tests to meet. Simply, outside Australia for 183 days, you are a non resident.

Once outside of Australia for over 183 days, how can one argue that it's the days between 45 and 183 days that they were inside Australia that should be relied upon, not the over 183 days?

You don't get to choose like you do under the current 90 year laws, otherwise, there's no point in the proposed changes being legislated.

It's about physically being outside of Australia, and for how many days a financial year.

Basically, the 183 days outside Australia overrules the 45 to 183 days and their factor tests.

14 minutes ago, Fat is a type of crazy said:

If you are talking about non consecutive days or separate periods within a year then you need to note that.

If you reply it is appreciated if you please don't repeat the same words - address the specific potential contradiction.

To my knowledge, it's total days, they do not have to be consecutive, and unlike Thailand, it's in our financial year, not calendar year.

KhunHeineken · July 6

13 minutes ago, Pattaya57 said:

You've got the "bright line test" definition wrong, which is why all your posts have a contradiction. It is:

"a person who is physically present in Australia for 183 days or more in any income year will be an Australian tax resident"

That would mean someone outside Australia for 183 days would be a non resident, right? They can't be both.

KhunHeineken · July 6

10 minutes ago, Ralf001 said:

What sorta coin is needed to parked up up in a bank account to be collecting 45k in interest ?

As a resident or non resident?

Non resident, 10% tax on the interest.

Resident, you benefit from the tax free threshold and resident tax brackets.

KhunHeineken · July 6

14 minutes ago, Fat is a type of crazy said:

Now it makes sense.

It's been well discussed that some expats may do 184 days in Australia, and 179 days in Thailand.

For many, this is either not possible, nor desirable, or both.

I view it from the expat's point of view as being outside of Australia for more than 183 days, like most of are, and have been, for several years.

John49 · July 6

"Under 45 days inside Australia, non resident.

Over 45 days but under 183 days inside Australia, one must meet two out of the four factor tests.

~~Over 183 days outside Australia, non resident."~~

Over 183 days in Australia, resident.

Now, there is no longer a contradiction...

Pattaya57 · July 6

33 minutes ago, KhunHeineken said:

That would mean someone outside Australia for 183 days would be a non resident, right? They can't be both.

No it doesn't. I could be outside of Australia for 320 days and still be resident under the 45 day test. In fact I could be 365 days out of Australia and still be a Resident because I did 45 days in Aus during either of the previous 2 tax years

So funny that someone quoting the proposed tax rules in every post they make doesn't seem to actually understand the proposed tax rules 🤔

Edited July 6 by Pattaya57

Fat is a type of crazy · July 6

18 minutes ago, KhunHeineken said:

At any one point in time, yes, correct.

Yes.

Under the proposed changes, can you tell me how someone outside of Australia for more than 183 days will be able to argue they are still a resident for tax purposes?

You answered your own question.

You can't be in two places at once. You can only be inside, or outside of Australia at any point in time.

Say you do 100 days inside Australia, that means you are doing about 265 days outside Australia. The 183 days is what they are calling a "bright line test." No factor tests to meet. Simply, outside Australia for 183 days, you are a non resident.

Once outside of Australia for over 183 days, how can one argue that it's the days between 45 and 183 days that they were inside Australia that should be relied upon, not the over 183 days?

You don't get to choose like you do under the current 90 year laws, otherwise, there's no point in the proposed changes being legislated.

It's about physically being outside of Australia, and for how many days a financial year.

Basically, the 183 days outside Australia overrules the 45 to 183 days and their factor tests.

To my knowledge, it's total days, they do not have to be consecutive, and unlike Thailand, it's in our financial year, not calendar year.

I thought I was being a bit pedantic to keep pointing out the flaw in logic but it seems you still don't get it. As others said - over 183 in Australia - no worries - resident - under 183 but over 45 - see if you can pass factor tests.

Ralf001 · July 6

32 minutes ago, KhunHeineken said:

As a resident or non resident?

Non resident, 10% tax on the interest.

Resident, you benefit from the tax free threshold and resident tax brackets.

yeah ok..

That does not answer my question.

To be collecting 45k in interest the bank account would have how much in it ?.... north of 1 milllion ?

Pattaya57 · July 6

9 minutes ago, Ralf001 said:

yeah ok..

That does not answer my question.

To be collecting 45k in interest the bank account would have how much in it ?.... north of 1 milllion ?

About $900k @ 5% which Westpac and NAB currently offer for savings accounts. Could get more on Term deposits

Edit: Term deposit is 5.3% at Great Southern so $850k needed

Edited July 6 by Pattaya57

KhunHeineken · July 6

2 minutes ago, Ralf001 said:

yeah ok..

That does not answer my question.

To be collecting 45k in interest the bank account would have how much in it ?.... north of 1 milllion ?

Assuming an interest rate of 5%, that would be $900,000 invested to return $45,000. (not including tax)

KhunHeineken · July 6

26 minutes ago, Pattaya57 said:

No it doesn't. I could be outside of Australia for 320 days and still be resident under the 45 day test. In fact I could be 365 days out of Australia and still be a Resident because I did 45 days in Aus during either of the previous 2 tax years

So funny that someone quoting the proposed tax rules in every post they make doesn't seem to actually understand the proposed tax rules 🤔

I have said I see YOUR point. As in YOUR personal circumstances.

I have also said, how many expats are in similar circumstances to YOU?

I am postng "in general" not about YOUR personal circumstances.

Your typical Aussie expat hasn't been back to Australia for several years. Tell me how YOUR circumstance also apply to them?

So funny that someone seems to think everyone has the same personal circumstance as yourself in regards to the proposed changes to tax residency.

Ralf001 · July 6

8 minutes ago, KhunHeineken said:

Assuming an interest rate of 5%, that would be $900,000 invested to return $45,000. (not including tax)

decent wedge sitting idle in a bank account !

Edited July 6 by Ralf001

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