The ATO assesses residency under the ordinary concepts test by examining the totality of a person's circumstances. The following factors are drawn from TR 98/17 and binding Full Federal Court authorities. Each factor is rated for its evidence weight and ATO defensibility based on the file to date.
| Factor | Current Status | Weight | ATO Defensibility | Why This Matters |
|---|---|---|---|---|
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Physical Presence (Days Abroad)
Day-count is the single most-cited datapoint in ATO audit letters. Fewer than 183 AU days per year is necessary but not sufficient for non-residency.
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Expected <60 AU days post-departure. Dubai tenancy commencing April 2026. | High | Strong | Clear break; travel log in evidence vault from April. |
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Permanent Place of Abode
The domicile test turns on whether a "permanent place of abode" exists outside Australia. A short-term rental does not qualify — the ATO looks for settled, habitual accommodation.
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12-month Dubai lease signed. Exhibit 7. Lease runs April 2026 – March 2027 with renewal option. | High | Strong | 12-month committed tenancy is the gold standard for "permanent abode" evidence. |
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Australian Property — Retention
Retaining an available Australian home strongly suggests an intention to return. The ATO's position: if you can sleep there tonight, you still reside there.
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Paddington apartment ($1.4M) listed for lease. Tenancy agreement signed June 2026 with a PM. Not available to subject post-July 2026. Exhibit 3. | High | Watch | Leasing removes the "available to return to" risk — but ownership itself is still noted. Maintain lease without interruption. |
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Family Location and Ties
The location of a person's immediate family (especially a spouse) is a dominant factor in the ordinary concepts test. Courts have consistently treated this as a top-three factor.
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No spouse or dependants. Parents reside in Melbourne; contact is social, not financial dependency. Evidence: social media, travel records, statutory declaration. | High | Strong | No immediate family remaining in AU materially strengthens the residency break argument. |
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Employment and Business Ties
Ongoing AU employment — especially with an AU employer — is one of the most common reasons the ATO denies non-residency claims. Remote work for an AU entity counts as carrying on business in Australia.
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Sydney tech role ended April 2026. Redundancy confirmed in Exhibit 1. New Dubai employer engagement commences May 2026 (offer letter: Exhibit 8). No ongoing AU business interests. | High | Strong | Clean employment break with documented new foreign employer is ideal. No AU consulting work post-departure. |
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Superannuation Status
Continued voluntary super contributions (beyond the compulsory employer component) can indicate an intention to return. Super fund notification of non-residency is basic hygiene.
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Super fund notified of non-residency May 2026. Voluntary contributions ceased. Accumulation phase continues passively. Exhibit 11. | Med | Strong | Notification creates a formal record of residency-cessation intent. Well-handled here. |
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Financial Ties — Banking and Investments
Maintaining an AU transaction account alone is not determinative, but a pattern of AU-centric financial activity (ongoing AU income, active AU investing, AU credit cards as primary) signals ongoing connection.
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UAE bank account opened April 2026 (Emirates NBD — Exhibit 9). AU bank account converted to international non-resident account. AU ETF portfolio retained (taxed under AU non-resident rules). No new AU investment activity. | Med | Watch | Retained AU ETFs are acceptable but require careful withholding tax management. Primary financial activity must shift to UAE. |
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Social and Community Ties
Club memberships, professional associations, and community roles — especially when ongoing — indicate that Australia remains the person's social "home base." The ATO does look at this.
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Sydney gym membership cancelled April 2026. Professional association (tech industry) membership retained for networking — low risk. No club or community leadership roles. Dubai expat community membership commenced May 2026 (Exhibit 13). | Med | Strong | Deliberate wind-down of AU social infrastructure, with active foreign community engagement, builds the narrative. |
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Intention — Documented Evidence
Subjective intention alone is worthless. The ATO requires objective evidence that the intention to become a non-resident is genuine and was formed before departure. Post-hoc statements carry little weight.
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Resignation letter references Dubai move (Exhibit 1). UAE visa application dated February 2026 (Exhibit 2). Dubai apartment search records from January 2026 (Exhibit 5). LinkedIn relocation announcement April 2026. | High | Strong | Pre-departure documentation trail is the strongest available signal of genuine, pre-formed intent to emigrate. |
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Domicile of Origin — Australia
All Australian-born individuals have an Australian domicile of origin. This is the hardest factor to shift — it requires evidence of a settled intention to reside permanently abroad, not merely temporarily.
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Born Melbourne. Domicile of origin is Australia. No formal domicile of choice in UAE established yet (UAE does not operate a common-law domicile system). File argues non-residency under ordinary concepts test, not domicile test, as primary ground. | High | Watch | Primary reliance on ordinary concepts test (not domicile test) is the correct strategy here. Ensure the narrative reflects this. |
All exhibits are timestamped, stored in the evidence vault, and available for direct export. Counsel receives the full package in PDF + structured folder format.
Month-by-month chronological narrative of the residency-change event sequence. Each entry is tagged to the factor it evidences and the exhibit that supports it. This timeline is the backbone of any ATO response.
Remaining risks to the non-residency position, ranked by severity. Each risk has an active mitigation note. Risks are re-assessed monthly as the evidence trail develops.
Plain-English summary of the residency position. Written in the tone and structure counsel would use when preparing a response to an ATO audit or objection.
Sam M. ceased to be an Australian tax resident on or about 14 April 2026, the date of departure from Australia. The primary ground for this conclusion is the ordinary concepts test under section 6(1) of the Income Tax Assessment Act 1936. Under this test, the question is whether the individual "resides" in Australia according to the ordinary meaning of that word. The answer turns on the totality of the individual's circumstances — not any single factor — and the evidence assembled in this file supports the conclusion that Australia ceased to be the individual's home from the departure date.
The key features of Sam M.'s exit are as follows. First, the departure was permanent in character and pre-meditated: apartment searches in Dubai commenced in January 2026, a UAE residency visa was granted in March 2026, and resignation from Australian employment was documented in that same month. These pre-departure steps establish that the exit was not impulsive or temporary. Second, the individual's centre of life has shifted to Dubai in every measurable dimension: a 12-month Dubai lease is in effect, the individual is employed by a Dubai entity, primary banking activity has migrated to a UAE account, and Australian social and community ties have been deliberately wound down. Third, the Australian property has been let on a formal tenancy and is not available to the individual as accommodation. This removes the most common basis on which the ATO finds that a property-owning individual retains an Australian "home."
The domicile test is not the primary ground for this file. The UAE does not operate within a common-law domicile framework, and the ordinary concepts test provides a stronger and more straightforward basis for the non-residency conclusion. Under the ordinary concepts test, the question is whether a reasonable person, looking at the totality of Sam M.'s circumstances from April 2026 onwards, would conclude that Australia is where Sam M. "resides." The evidence strongly supports the answer: no. The individual sleeps, works, banks, and maintains their social life in Dubai. Their connection to Australia is that of a property investor and a person with family in Melbourne — neither of which, on its own or in combination with the other, is sufficient to constitute "residence" in Australia.
The remaining risks are manageable. The most significant is the potential for Australian day-count accumulation on future return visits. The individual is advised to keep AU visits below 60 days per calendar year and to maintain the Dubai tenancy without interruption. The ETF portfolio, while retained, is being managed on a hold-not-trade basis with non-resident withholding tax properly applied. Counsel should note that the strength of this file lies in the volume and consistency of the evidence across all factors — physical presence, employment, accommodation, banking, and social ties all point in the same direction. This is the outcome that a well-constructed evidence trail produces, and it is materially more defensible than the typical self-managed exit in which the individual simply moves abroad without documenting the transition.