In brief - Decision in Harding v Commissioner of Taxation still stands. How will ATO respond?
The High Court has refused to grant the ATO special leave to appeal, and the Full Federal Court's decision in Harding v Commissioner of Taxation [2019] FCAFC 29 now stands. See my article Tax Residency of Australian expats for more information on that decision.
This means that so long as an expatriate can establish that they have:
- abandoned their Australian residence in a permanent way, and
- established a permanent residence in a particular country,
they will have established a permanent place of abode outside Australia for the definition of resident in the Income Tax Assessment Act 1936 (Cth).
Expatriates who move between countries are unlikely to satisfy the above conditions, as demonstrated in Handsley and Commissioner of Taxation [2019] AATA 917. See my article Further guidance on tax residency of Australian expats.
It will be interesting to see if the ATO issues a decision impact statement confining the decision in Harding to its own facts.
Carlos Gouveia
Corporate advisory
Colin Biggers & Paisley
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.