Harding v Commissioner of Taxation [2019] FCAFC 29

FEDERAL COURT OF AUSTRALIA

Harding v Commissioner of Taxation [2019] FCAFC 29 Appeal from: Harding v Commissioner of Taxation [2018] FCA 837

File number: QUD 442 of 2018

Judges: LOGAN, DAVIES AND STEWARD JJ

Date of judgment: 22 February 2019

Catchwords: TAXATION – residency of taxpayer – permanent place of abode – where primary judge found that the taxpayer was a "resident or resident of Australia" as defined in s 6 of the Income Tax Assessment Act 1936 (Cth) – where primary judge found that rented accommodation for a temporary purpose did not constitute a "permanent place of abode" – whether "permanent place of abode" should be construed by reference to a specific permanent dwelling or a geographic location TAXATION – ordinary meaning of "resides" – where primary judge found that the taxpayer's absence from Australia and his intention not to return were sufficient to terminate his residency in Australia – whether the taxpayer was a resident of Australia TAXATION – review by the Court – where taxation provision is conditioned by the Commissioner's satisfaction – whether Court can go beyond identifying an error of law in the Commissioner's state of satisfaction

Legislation: Domicile Act 1982 (Cth) s 10 Income Tax Assessment Act 1922 (Cth) Income Tax Assessment Act 1930 (Cth) Income Tax Assessment Act 1936 (Cth) s 6 Taxation Administration Act 1953 (Cth) s 14ZZ Explanatory Notes, Income Tax Assessment Bill 1930 (Cth)

Cases cited: Applegate v Commissioner of Taxation [1978] 1 NSWLR 126 Avon Downs Pty Ltd v Commissioner of Taxation (1949) 78 CLR 353 Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146 Commissioner of Taxation v Miller (1946) 73 CLR 93 Deputy Commissioner of Taxation v Brown (1958) 100 CLR 32 Donaldson v M'Clure (1857) 20 D. 307 Federal Commissioner of Taxation v Applegate (1979) 38 FLR 1 Federal Commissioner of Taxation v Jenkins (1982) 59 FLR 467 Ferrier-Watson v McElrath (2000) 155 FLR 311 Giris Pty Ltd v Commissioner of Taxation (1969) 119 CLR 365 Hafza v Director-General of Social Security (1985) 6 FCR 444 Inland Revenue Commissioners v Lysaght [1928] AC 234 Kolotex Hosiery (Australia) Pty Ltd v Commissioner of Taxation (1975) 132 CLR 535 Levene v Inland Revenue Commissioners [1928] AC 217 MacCormick v Commissioner of Taxation (1984) 158 CLR 622 R v Braithwaite [1918] 2 KB 319 R v Bundy [1977] 1 WLR 914 R v Hammond (1852) 117 ER 1477 R v Webb [1896] 1 QB 487 Re Dempsey and Federal Commissioner of Taxation (2014) 98 ATR 698 Russell v Russell [1935] SASR 85 Terrassin v Terrassin (1968) 14 FLR 151 Winans v Attorney-General [1904] AC 287 W R Carpenter Holdings Pty Ltd v Commissioner of Taxation [2006] FCA 1252; 63 ATR 577