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Question one

Discuss whether Samantha is an Australian resident for the period January 2013 until her return to Melbourne in July 2015 under both the primary test of residency and the domicile test. Indicate the impact that her residency status has on her Australian assessable income.

Facts of the case

Who- Samantha (individual resident) is an Australian citizen with a spouse and children

What – Samantha left for Singapore with her family with his spouse for 3 to 4 years

When – Samantha moved to Singapore in the month of January 2013

Where – Samantha was outside Australian geographical boundaries for following days and below mentioned reasons



Nature and purpose of visit


From Jan 2013 to Dec 2013

Was in Singapore with his spouse for business reasons


Jan 2014

Business and family reasons


Feb 2014 to Dec 2014

Was in Singapore with his spouse for business reasons


Jan 2015 to June 2015

Was in Europe for six months holiday for leisure purpose.

Why – The nature of the visit was for business leisure and family purpose

Australian Taxation Laws Assignment Help

Issues of the present case

To determine and calculate whether the Samantha is liable for taxation under the ITAA 1936 for the period starting from January 2013 to July 2015.

Relevant law

As per Fickling,  (2015) Tax status of individual resident can be determined from section 6 sub section 1 of ITAA 1936. There are four available rules given in the particular segment. If an individual fulfils the qualification of any of the given rules then according to above mentioned section individual will be resident for the particular assessment year. The year in which any of 4 conditions applies will be eligible for will be eligible for residential status.

According to the relevant case law of Gegory VS FCT if individual approach of residential status in more than one countries then it can be taken into account as one can be tax resident in more than one country as per the relevant law of the land. The four rules determining the tax residential status in Australia are as follow. Meli, (2016).


Factors determining residential status

Relevant taxation laws


Common Law Test 


Residency has different meaning as per the general law prevailing in Australia. Residency might sense different meanings as per taxation law, matrimonial laws and jurisdiction laws. Residential status of an individual might vary from case to case and is dependent upon the commissioner of income tax view point. The following factors might be taken into consideration while seeking taxpayer’s residential status.

  • Physical presence of assesse in the country at the time of income generation
  • Citizenship of assesse
  • Assesse duration, frequency of visits to Australia, along with that purpose of visit is taken into consideration

Taxation rulings of 98/17 does not applies individual who returns to Australia from overseas after staying there for particular period of time

Relevant case laws

  • FCT vs. Miller (1946)



Domicile Rule


Domicile is the legal relationship established between an individual and place of its residence. Domicile is further categorised into three segments


Permanent place of abode-

According to the Income tax rulings IT 2650 issues by commissioner of Income tax and ATO (Australian taxation office). There is no particular rule for determining permanent place of abode as in case of 183 days rule. It is somewhat sub judicious to the decision of the commissioner of income tax to determine the individuals residential status. Some of the prominent facors which are considered by taxation officer in determining permanent place of abroad.ato., (2016).

  • Determination of actual length of residence in overseas countries
  • Nature of overseas stay. For instance permanent or temporary stay
  • Whether the assesse has established a permanent home outside Australian continent.
  • No of days stay in the Australian continent
  • Whether the spouse still staying in Australian continent or not, further checking the factor of minor or major for the children.



Domicile by place of origin


Place where individual was born


Domicile of Choice

It is upon the wish of the assesse where he wants to reside



Dependence Domicile


Up to the age of 18 years domicile of parents/ guardian will be domicile of minor.

Relevant case laws

  • FCT vs. Applegate (1979) 9 ATR 899
  • FCT vs. Jenkins (1982) 12 ATR 745


Relevant case laws (permanent place of abode)

  • R vs. Hammond (1852)



183 days test


This law specifies that whether the assesse was residing in the territory of Australia for more than 183 days during the previous year. Assesse can qualify to be resident if above mentioned condition certifies. Assesse can either stay in Australia over continuous days or in parts. 


Relevant case laws

  • Case 78 11 CTBR (OS) 232



Super fund test


This rule applies to the individuals working under the commonwealth of Australia. They are foreign diplomatic agents, officers working for government of Australia in foreign territory, their family member. This rule do not qualifies in the present scenario.

Though there is an exemption for their children if they not minor.

As per ato., (2016) (5) Tax status of individual resident can be determined from section 6 sub section 1 of ITAA 1936. Further according to section 6 -5 it gives power to Australian Taxation jurisdiction to charge tax on the residents defined on the basis of above factors to charge income tax. According to the relevant section gross income taxable will include all the income whether or not earned from the Australia or from the outside region. Following observations are generated while checking the relevant law.

Australian Resident –All income whether earned from domestic or from outside Australia will be assessed to taxation as per Australian taxation law.

Foreign Resident –Only direct and indirect incomes earned from Australian sources will be assessed to tax

Application in present scenario

In the present scenario of Samantha the duration for which she stays in Australia was tabulated below


Financial year

No. of stay in Australia


2012 – 2013

= 365 - (31+28+31+30+31+30) = 184 days*


2013 – 2014

=31 days**


2014 – 2015

= 0 days***

In the financial year 2012 –2013 assesse Samantha went to Singapore for remaining half period of the year from Jan 2013 to June 2013. Further it is assumed that Samantha was staying in Australia for the remaining period. As per the 183 days rule assesse Samantha was staying for more than 181 days in Australia, therefore both Samantha and his spouse will be resident for the relevant period

In the financial year 2013 –2014 assesse Samantha came back to Australia from Singapore for the period of one month only. Samantha and her spouse period of stay in Australia for relevant period were for 31 days only. As per the 183 days rule assesse Samantha was staying for less than 181 days in Australia, therefore both Samantha and his spouse will not be resident for financial year 2013 – 2014.

As Samantha and his spouse has permanent place of residence as their family home in Australia and their children are staying there in spite of the fact that Samantha has also established a place of residence outside Australian continent it is up to contention of commissioner of income tax to decide the residential status of individual. In the relevant situation which describe the assesse intention to return to the home country Australia and further supported by case law RC v Lysaght (1928) AC 234 Samantha and his spouse will be tax resident for the financial year 2013 – 2014 year while determining her domicile test.

In the financial year 2013 –2014 both Samantha and his spouse were outside the Australian territory for the complete year. Therefore while considering 183 days rule both were non resident of Australia for the relevant period.


Fickling,  J.W., 2015, “Case Law Developments in Residency – Individuals”, Western Australian Bar, 2015 Available at-

ato., (2016). Income tax: residency - permanent place of abode outside Australia, Taxation Ruling No. IT 2650 IT 2650. Available at -

Alley, C., Bentley, D. and James, S., 2002. New Zealand Definition of Residence for Individuals: Lessons for Australia in a Global Environment, The. J. Austl. Tax'n, 4, Available at -

Meli, J (2016). Australian International Tax, PrimeGlobal Knowledge Library. Available at

ato., (2016). Work out residency status for tax Available at -