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29 Aug 13 Taxpayer was a resident of Australia - ZKBN

The AAT has held that the taxpayer was, contrary to his assertions, a resident of Australia for tax purposes during the income years ended 30 June 2007 and 30 June 2008, during which he spent much of his time in employment outside of Australia. Specifically, the taxpayer was in Australia for only 47 days in the 2007 tax year and for only 117 days in the 2008 tax year.

The Commissioner's case was described thus:

"The [Commissioner] has identified the following factors as demonstrating that, in the relevant tax years, the [taxpayer] retained a continuity of association with Australia, an intention to return to Australia and an attitude that Australia remained his ‘home’: his citizenship; his family connections to Australia; his returns to Australia when he was unemployed; the duration of his stays in Australia; his entries on immigration departure and arrival cards; his employment in places overseas on short term contracts; his ownership of a house in Australia; his relatives’ use of and his storage of personal items in the house until it was sold; his storage of personal items in Australia; his continuation of mortgage payments until it was sold; his use of his Australian address for notices in relation to his contract for overseas work; the absence of a permanent home overseas; his reliance on an Australian bank account while overseas; his ownership of a vehicle in Australia; the absence of permanent work overseas before May 2008; and his return to Australia permanently in 2009."

The AAT summarised its findings thus:

"...the [taxpayer] retained a continuity of association with Australia as well as an attitude that Australia continued to be his home in the relevant tax years. Those conclusions are supported by his ownership of a house in Australia until June 2007 as well as a vehicle until 2008 and his storage of personal items in the house and then in a commercial facility in Australia until after the 2008 tax year. His attitude that Australia was his home and his continuing connection to Australia is also supported by his reliance on his Australian address for notices in relation to his contracts for overseas work even, at times, after it had been sold. He also continued to rely on an Australian bank account for disbursements and for his receipt of income payments when overseas. While inertia, as submitted on his behalf, may be part of the reason for the use of an Australia bank account, his reliance thereon demonstrates confidence in and a continuing connection with the Australian arrangement."

The AAT held that the taxpayer had not discharged the onus of proving that, throughout the 2007 and 2008 tax years, he was not a “resident” or a “resident of Australia” for the purposes of s 6(1) of the ITAA 1936.

ZKBN and FCT [2013] AATA 604 (AAT, Kenny SM, 27 August 2013).

 


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