The director of a mining company located overseas is recognized as a resident of Australia

The AAT ruled that a taxpayer who was based in Indonesia or Mongolia during the 2015 to 2018 income years was a resident of Australia under the ordinary concepts test due to their continued association with the Australia.

Facts

The taxpayer was an Australian citizen who had worked for a global mining company (the Sandvik Group) for approximately 23 years. He had spent most of that time working abroad, i.e. in Ghana from 1997, in Zambia from 2005 to the end of 2011, in Indonesia from the beginning of 2014, then in Mongolia from the end of 2016 to the end of 2020. The taxpayer and his wife had purchased a house in Perth in 1995. and they retained ownership of it throughout his employment with the Sandvik Group.

The taxpayer’s wife and son lived with him in Ghana until 1999 but then returned to Australia for the son to complete his education. The taxpayer’s wife then lived with the taxpayer in Zambia from 2005 until December 2011, when the couple returned to Australia and the taxpayer accepted a position with Sandvik Australia. From then on, the woman continued to reside in the house in Perth.

The taxpayer moved to West Papua, Indonesia in January 2014 where he lived in a house provided by his employer. He shared the house and a vehicle with 2 other Sandvik employees. Due to living conditions issues, his wife remained in Australia. While in Indonesia, the taxpayer was a member of a golf club, attended language classes and Christian church services, and was taxed as an Indonesian resident. In the 3 employment contracts covering his service in Indonesia, his address was listed as the family home in Perth, with Western Australia recognized as his pick-up point for return flights.

In November 2016, the taxpayer moved to Mongolia, where he received a fully furnished apartment for his own use, although he continued to share the use of a vehicle with 2 other employees. The taxpayer’s wife remained in Australia due to the advanced age of her parents. As with the taxpayer’s Indonesian employment contracts, the Mongolian employment contracts listed his address as the home in Perth and the rental location in Western Australia. The taxpayer paid tax in Mongolia at the same rate as Mongolian nationals. He returned to Australia in November 2020 due to the COVID-19 situation.

The Commissioner issued the taxpayer notices of assessment for the income years ending June 30, 2015 to June 30, 2018, assessing him as liable for income tax of $18,540, $55,012, $93,227 and $89,772. During these 4 tax years, the taxpayer was physically present in Australia for approximately 92 days, 104 days, 79 days and 90 days. The taxpayer objected to the assessments, the Commissioner dismissed the objections, and the taxpayer requested a review of the objection decisions. The issue was whether the taxpayer was a resident of Australia under the ordinary concepts test during the relevant years so as to be subject to assessed income tax.

Decision

In upholding the decision at issue, the AAT said that while the taxpayer was dedicated to his work and career, the objective evidence pointed to a continuing association with Australia. This evidence included his accommodation in Indonesia and Mongolia (which was better described as temporary than domicile), sharing a vehicle with other employees, his accommodation and his visa status in each country (which depended on his employment ), the terms of his employment contracts, maintaining his Australian home (which he used as the address for his overseas employment contracts), his regular return home for important events such as birthdays and Christmas, his recreational activities taking place primarily in Australia, and his maintaining and using Australian bank accounts.

The AAT found that, in the circumstances, the taxpayer’s fixed place of residence was in Australia; he had a continuity of association with Australia and an objective intention to return. He was an Australian resident for tax purposes under the ordinary concepts test.

Source: Oberg vs FC de T ATC 2021 ¶10-602; [2021] AATA 4606, December 13, 2021.