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The AAT has held that the taxpayer was a resident of Australia in the 2008-09 tax year.

During that tax year, the taxpayer, who was born in New Zealand, spent only 99 days in Australia and the balance of the time he was working, mainly in Qatar, living in construction camp quarters. His wife and daughters lived at all times in Australia where the taxpayer had his substantial property investments, bank accounts and possessions.

The Commissioner argued that the taxpayer was a “resident” of Australia in that he had an established abode with family home, wife, children and investments in Australia. Further, he argued that the taxpayer was a “resident” in the extended meaning of the definition in s 6 of ITAA 1936 because he had established a domicile of choice in Australia. In contrast, the taxpayer argued that he had always kept his domicile of origin of New Zealand and he had never acquired a domicile of choice in Australia because he never had the required intention to remain indefinitely in Australia.

After reviewing all the facts, the AAT held that the taxpayer acquired a domicile of choice in Australia well before the 2008-09 tax year. He was therefore a resident of Australia for tax purposes.

Ellwood and FCT [2012] AATA 869 (AAT, Letcher QC SM, 11 December 2012)


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