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The AAT's Small Claims Tribunal has held that Mr Guissouma, a 30 year old unmarried French citizen who arrived in Australia on 3 December 2010 on a temporary working holiday visa, and who undertook casual work before returning to France on 28 November 2011, was a resident of Australia for tax purposes and, therefore, entitled to the tax-free threshold available to a resident under s 18 of the Income Tax Rates Act 1986.

Interestingly, the Commissioner argued that Mr Guissouma was not a resident in the 2012 income year, although he had accepted that Mr Guissouma was a resident in the 2011 income year.

In finding that Mr Guissouma was a resident, the AAT said at paras 31-33:

"I could not discern any factual differences that have any relevance to the determination of Mr Guissouma’s residency status between the 2011 and 2012 years, even taking into account the 183 days test. Nor did the Commissioner provide any explanation as to why he reached a different conclusion about the 2012 income year.

I have decided that Mr Guissouma was a resident of Australia during the part of the 2012 income year that he was in Australia, as he in fact resided in Australia. This is because, as a matter of fact, he actually lived in Sydney for over a period of some ten months, even though that period straddled two income years. He chose to work for most of the time that he was in Australia, notwithstanding that he was on a temporary working holiday visa. He lived in regular places in Sydney, not far from each other for periods of between three and four months at each place. He rented that accommodation with friends. The nature of his stay in Sydney demonstrates that he had a settled place which he treated as his home for a limited period of time and developed some routines, including in respect of his work commitments.

While it is true that he maintained connections with his parents in France and some assets there, these were not matters that were of significant importance, particularly having regard to his personal circumstances, including the fact that he was not married. They merely suggested that he was going to eventually return to France, as he did."

Guissouma and FCT [2013] AATA 875 (AAT, Lazanas SM, 9 December 2013).

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