Background
Trong Quy, an Australian citizen domiciled in Australia, lived and worked in Dubai from 2015 to 2021 on an international assignment with his Australian employer. During the relevant income years ending 30 June 2016 to 2020, he lived in an employer-leased Dubai apartment, held UAE residency permits and made only short return trips to Australia.
He nevertheless retained significant Australian connections: his Perth home remained available for his daughters, his wife spent most of her time in Australia, and he retained Australian bank accounts, investment properties, vehicles, superannuation and personal belongings. The Commissioner disallowed his objections to assessments on his Dubai employment income. After an earlier Tribunal decision was set aside and remitted, the Administrative Review Tribunal again affirmed the assessments.
The Court’s Holding
Horan J dismissed Quy’s appeal. The Tribunal had correctly applied the domicile limb of the statutory definition of resident: a person domiciled in Australia remains an Australian resident unless the decision-maker is satisfied that the person’s permanent place of abode is outside Australia.
The Tribunal’s finding that Quy did not reside in Australia under ordinary concepts did not compel a finding that his Dubai abode was permanent. It was legally open for the Tribunal to regard the Dubai accommodation, employment arrangements and social evidence as equivocal, and to weigh Quy’s continuing Australian connections and successive work assignments in concluding it was not satisfied that he had abandoned Australian residence and established a non-temporary place of abode outside Australia. No error of law was shown.
Key Takeaways
- Not residing in Australia under ordinary concepts does not itself establish a permanent place of abode overseas.
- A permanent overseas abode need not be indefinite, but must be more than temporary or transitory.
- On an appeal from the Tribunal on a question of law, the Court will not reweigh factual matters merely because another conclusion was available.
Why It Matters
The decision illustrates the distinct operation of Australia’s domicile test for tax residency. Overseas employees with an Australian domicile must establish more than lengthy foreign work and accommodation to displace Australian residency.
Continuing family, property, financial and personal ties to Australia may properly be weighed with the character of an overseas assignment when deciding whether an overseas abode is permanent.