Published on 01 Sep 14
by "TAXATION IN AUSTRALIA" JOURNAL ARTICLE
Determining the tax residency of an Australian living overseas requires a detailed factual inquiry. It is accepted that the term “resides” has its ordinary meaning and involves an inquiry as to whether the facts of the case are within that ordinary meaning. For that reason, taxation cases involving questions of residency tend to be decided by the Administrative Appeals Tribunal rather than the Federal Court.
This article examines recent cases on residency decided by the tribunal, including the Dempsey case. The purpose is to determine whether Dempsey is a decision turning on unique facts, or whether it signifies a broader trend in residency cases in the tribunal requiring a change to the Commissioner’s administrative practice. The article argues that the case highlights the danger of the “rules of thumb” typically applied by the ATO and tax practitioners in this area, and the importance of a genuine inquiry into all of the taxpayer’s circumstances.
Thilini Wickramasuriya, CTA, is a Tax Counsel at The Tax Institute and is responsible for coordinating the technical activities of the Tax Policy and Advocacy Team. Thilini regularly engages with Treasury, the ATO, the Board of Taxation and the Inspector-General of Taxation. Prior to joining the Institute, Thilini practised as a solicitor, acting in significant tax disputes on behalf of both taxpayers and the Commissioner in the High Court, Federal Court and Administrative Appeals Tribunal. Prior to this, Thilini worked in a Big Four accounting firm advising multinational clients on international tax issues. Thilini holds degrees in Law and Commerce and a Master of Law degree from the University of New South Wales.
- Current at
22 May 2017