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The AAT has held that a taxpayer was a resident of Australia at the time he received an employment termination payment (ETP) from his employer in April 2007, and was therefore assessable in respect of certain components of it.

The taxpayer had spent a large part of his employment with his employer overseas, but had also been employed for a period in Australia. The payment was not therefore an exempt non-resident foreign termination payment, because the payment did not relate solely to a period of the employment during which the taxpayer was not a resident of Australia

As to residence, the AAT said, at para 38:

"In my opinion, the evidence clearly discloses that Mr Boyd was a resident of Australia during the 14 month period between 2002 and 2003 when he was domiciled in Australia. There was no evidence that he retained a permanent place of abode outside Australia. He returned to Australia in December 2006 when he took up permanent residency. Once again, there was no evidence before me to suggest that since December 2006, Mr Boyd has retained a permanent place of abode outside Australia."

In contrast, the AAT held that part of the ETP, referable to annual leave and long service leave accrued during his foreign service, was exempt by reason of s 23AG(1) of ITAA 1936.

Boyd and FCT [2013] AATA 494 (AAT, Fice SM, 12 July 2013).


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