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.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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