183+ days doesn’t mean residency is guaranteed

Posted on June 8, 2015 by ATB Chartered Accountants
RESIDENCY FACTS

The taxpayer, at that time a 21 year old Danish national, entered Australia on 18 August 2012 under a working holiday visa. She described herself as a ‘visitor or temporary entrant’. She backpacked around Australia for 287 days and during that time, worked on two farms for a combined 5 months.

On 1 June 2013, the taxpayer left Australia and returned to Denmark to stay with one of her parents long enough to save enough money to travel again. After leaving Australia, she authorised Backpackers Buddy

Pty Ltd to lodge a tax return on her behalf under a Power of Attorney.

A tax return was duly lodged and on 4 November 2013, the ATO issued a Notice of Assessment, assessing the taxpayer’s income as a non-resident. An objection was lodged and declined, and that taxpayer applied to the AAT to review the decision.

RESIDENCY DECISION

Under S.6(1) of the ITAA 1936, a resident means a person who has been in Australia more than half of the year of income unless the Commissioner is satisfied their usual place of abode is outside of Australia.

The AAT member stated that “overseas visitors on holidays or working in Australia who are in Australia for more than 183 days would not be residents during their stay under this test, as they would usually have a usual place of abode elsewhere and would not have an intention of taking up residence in Australia.

It is only is the Applicant had completely abandoned her usual place of abode in Denmark during the year ended 30 June… that the result would be otherwise.”

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