Australian expats who have been forced back to Australia because of the COVID19 pandemic, need to understand what returning to Australia might mean for their tax position.
The latest advice from the ATO on these issues can be accessed here.
Essentially, the ATO’s view is that if you are a non-resident of Australia and you are temporarily in Australia for some weeks or months because of COVID19, then you will not become an Australian resident for tax purposes provided that you usually live overseas and intend to return as soon as possible.
However, the ATO guidance acknowledges that tax residency issues can become more complicated if the non-resident ends up staying in Australia for a lengthy period or does not plan to return to their overseas country of residency. The ATO guidance also acknowledges that there will be unique situations with a range of potential tax outcomes.
It is an important time to recognise that under Australian tax law a person is considered to be a resident of Australia in accordance with ordinary principles, essentially if they are dwelling permanently or for a considerable time in Australia or if they have their settled or usual abode here.
We think a helpful summary of the state of the law of residency has been provided by Justice Derrington in Harding v Commissioner of Taxation [2018] FCA 837 in which he said:
“Necessarily the question of where a person resides is a question of fact (and, perhaps, of degree per Dixon J in Miller at 103), the conclusion of which is reached by a consideration of all of the person’s circumstances. Those circumstances will be directed to ascertaining whether a person has a physical presence or retains a “presence” in one location whilst at the same time maintaining an intention to reside there. The consideration also involves identifying the person’s “habits and conduct within the period”, however, that will include a consideration of the events occurring prior to and subsequent to the relevant period as illuminating the relevance of the events in the relevant period.”
183 Day test of limited relevance
It is also important for Australian expats to be aware that the so called 183 Day test is not the main test, but a subsidiary test which is mostly aimed at determining whether a foreigner who might be in Australia for more than 183 days during the income tax year is a resident.
The 183 Day test only works in one direction. There is a misunderstanding in certain expatriate circles that a person cannot be a resident of Australia unless they have been in Australia for more than 183 Days. That is incorrect. The key test has always been whether the person is residing in Australia in accordance with ordinary concepts and a range of indicators have been considered by the Courts over 150 years to determine whether someone is residing in a country.
