The taxpayer, Mr Harding has appealed to the Full Federal Court of Australia from a decision handed down on 8 June 2018 by Justice Derrington, in Harding v Commissioner of Taxation  FCA 837. In that case His Honour, found that Mr Harding was resident of Australia for tax purposes under the Domicile Test, because he failed to establish a ‘permanent place of abode’ in Bahrain during the relevant year, even though he left Australia permanently in 2009 and lived in Bahrain until 2015, before moving to Oman.
We believe the decision creates significant uncertainty and we are glad to see it appealed.
What happened in the case?
In 2009 Mr Harding departed Australia to take up full time employment in Saudi Arabia. He chose to live in Bahrain (as is commonly done) and obtained a visa to do so. Mr Harding and his wife Mrs Harding had previously lived overseas in the Middle East.
On the facts outline in the case, Mr Harding seemed to have lived in the one apartment in Bahrain for almost 2 years from June 2009 to 9 June 2011, including almost all of the year ended 30 June 2011 – which was the year in dispute in the case.
Matters were apparently made complicated for Mr Harding because on this occasion his wife (and his children) did not accompany him to Bahrain initially and after going so far as to enrol his youngest son into the British School in Bahrain, Mr Harding’s marriage did not survive.
There is a some suggestion that Mr Harding only secured a two bedroom apartment when he initially moved to Bahrain, perhaps because he knew that when his family moved (as he intended that they would) more suitable accomodation would be required. His Honour also appeared to be completely convinced that Mr Harding had departed Australia permanently – even going so far as to list the things which he considered were evidence of that fact.
What was the problem?
The problem for Mr Harding was that even though His Honour was convinced that he had left Australia permanently (and was not resident according to ordinary concepts), His Honour was not convinced that Mr Harding had established a ‘permanent place of abode’ in Bahrain. Consequently since Mr Harding was an Australian domicile – he was still a tax resident of Australia.
This is because of the operation of the ‘Domicile Test’ in Australia’s residency laws. The Domicile Test treats all persons who have their domicile in Australia as being tax resident, unless they can show that they have a ‘permanent place of abode’ outside Australia. We believe that the concept of Permanent Place of Abode is a settled concept under Australia’s tax law and has been so for over 40 years since FC of T v Applegate 79 ATC 4307 (Applegate). The concept of ‘place of abode’ has its ordinary meaning and the use of the word ‘permanent’ in connection with an abode simply implies a place which is not temporary.
Given that the Court agreed that Mr Harding;
– made his life in Bahrain;
– had a visa to reside in Bahrain and in fact resided in Bahrain;
– owned a car in Bahrain;
– had exclusive use of an apartment in Bahrain which he leased (which the Court agreed was not short-term accomodation; see para 75);
– travelled every day from Bahrain to his full time place of work in Saudi Arabia;
we find it difficult to see why Mr Harding was found not to have a permanent place of abode in Bahrain.
The factors that seemed to be held against Mr Harding were that he did not own many possessions (given the apartment was fully furnished) and it was reasonably easy for him to move between apartments in the same complex which he did in July 2011 (after spending almost 2 years in the fist apartment) when it became apparent that Mrs Harding was not going to move to Bahrain.
It also seemed to weigh strongly on His Honour’s considerations that Mrs Harding did not seem to want to live in the original apartment Mr Harding had chosen (even though it was big enough to house the family) and that Mr and Mrs Harding together looked at alternative accomodation when she visited him in Bahrain.
A relevant fact also apparently was that Mr Harding’s postal mail was not sent to Bahrain, but continued to be sent to his former home in Australia. In relation to this His Honour remarked in his closing remarks (para 149) that “It is indicative of an intention to reside at premises permanently or, at least, not temporarily if that place is used as the address for correspondence. Were a person to use their apartment address as that to which important correspondence is to be addressed it can be thought that they are intending to remain there for an extended period of time.” We cannot understand why His Honour considered that the receipt of postal mail in Australia was of material significance, when by contrast His Honour did not see it as particularly significant that Mr Harding had continuing financial arrangements with Australia (paragraph 85).
Factors suggesting Mr Harding did have a Permanent Place of Abode was in Bahrain
The strangeness of the decision here is compounded by the fact that although Mr Harding’s contract of employment was only for 12 months, when Counsel for the Commissioner argued that Mr Harding’s presence in Bahrain was ‘somewhat tenuous’ because of this, His Honour responded by remarking (correctly in our view) on the permanent nature of Mr Harding’s departure from Australia, his intention never to return to Australia to live, and his working history which demonstrated that was ’eminently employable’, effectively dismissing the Commissioner’s argument that the short term nature of the employment contract was a material weakness in the case.
Indeed at para 147 His Honour remarks that “An associated argument advanced by the Commissioner was that as Mr Harding’s employment in the Middle East might be terminated at short notice, his presence there was necessarily of a transitory nature. That submission, however, fails to take into account that Mr Harding was intent on remaining in the Middle East, although not necessarily in Bahrain, and his presence there was not, necessarily, tied to his continued employment with TQ Education.”
The decision in this case is all the more puzzling given that His Honour accepted that Mr Harding took leases of the apartments as extended term propositions also accepting that“that Mr Harding made his life in Bahrain. It was the place from which he commuted daily to his work in Saudi Arabia. He formed friendships there and it was where he attended restaurants and bars after work. He also went to the beaches there and engaged in go-carting at the local grand prix track. In general terms, he pursued the expatriate lifestyle with which he had been familiar for many years.”
Implications for Australian Expats
We hope that the decision in Harding is overturned on appeal. The answer to question of whether a person has established a ‘permanent place of abode’ overseas should be arrived at simply and in a common sense fashion, by considering whether the taxpayer has only a temporary place of abode in the country.
For residency purposes if a place is not temporary then it must be permanent otherwise a person cannot have any certainty. Surely we cannot have a third class of residency, being a state of being somewhere in the middle of temporary and permanent.
If the Court accepts that Mr Harding ‘made his life in Bahrain’ it should accept that he had a permanent place of abode there, regardless of where his postal mail is sent to.
It is pertinent to conclude by reflecting on the often quoted words of Fisher J in Applegate who said;
“To my mind the proper construction to place upon the phrase ‘permanent place of abode’ is that it is the taxpayer’s fixed and habitual place of abode. It is his home, but not his permanent home..Material factors for consideration will be the continuity or otherwise of the taxpayer’s presence, the duration of his presence and the durability of his association with the particular place.”
We look forward to a common sense judgement from the Full Federal Court in Mr Harding’s case.
UPDATE: On 22 February 2019, the Full High Court handed down a decision on the Harding v Commissioner of Taxation  FCA 837 case. Please see Residency – Harding’s Appeal Victory for the decision.
Author: Matthew Marcarian