19 Mar 12 Taxpayer a resident under "Commonwealth superannuation test" - Baker
The AAT has held that the taxpayer who, whilst on leave without pay from the Australian Department of Defence, did not reside in Australia and who did not therefore satisfy the ordinary meaning of the term "resident" was nevertheless an Australian resident for Australian income tax purposes because he was "a member of the superannuation scheme established by deed under the Superannuation Act 1990" within the meaning of s 6(1)(a)(iii)(A) ITAA 1936.
The AAT said, at para 35:
"The Tribunal must interpret and apply the legislation as it stands to the circumstances of each case. Mr Baker left Australia having agreed upon an arrangement with his employing Department that preserved his right to return to his employment in Australia after a period of absence on leave without pay. This arrangement clearly contemplated and proceeded on the basis of Mr Baker returning to Australia to resume his erstwhile employment on the nominated dates. These circumstances are to be distinguished from circumstances in which a person leaves Australia to live and work in a foreign country, with no intention of returning. If Mr Baker had departed Australia and his Departmental employment in circumstances of that kind, it is likely that his employment would have come to an end, he would have ceased to be a member of the PSS Scheme [Public Sector Superannuation Scheme] and his Australian residency status for taxation purposes would not have become an issue. But this is not what he did. Instead, he preserved his Commonwealth employment in Australia by taking leave of absence and, in so doing, extended his active membership of the PSS Scheme and his Australian residency for taxation purposes."
Baker and FCT  AATA 168 (AAT, Webb M, 16 March 2012).