Stockton v Commissioner of Taxation [2019] FCA 1679

FEDERAL COURT OF AUSTRALIA

Stockton v Commissioner of Taxation [2019] FCA 1679 File number: QUD 673 of 2018

Judge: LOGAN J

Date of judgment: 11 October 2019

Catchwords: TAXATION – residency of taxpayer – where the applicant is a citizen of the United States of America – where the applicant came to Australia for a "working holiday" – where the applicant was assessed for income tax as a non-resident and so could not claim the tax-free threshold – where the applicant submitted she was an Australian resident for taxation purposes – definition of "resident" – s 6(i) Income Tax Assessment Act 1936 (Cth) – whether the applicant was an Australian resident according to ordinary concepts – where the applicant had continuous presence in Australia for more than 183 days of the income year – whether the Commissioner erred in being satisfied the applicant's usual place of abode was outside Australia – role of the Court on a taxation appeal in relation to challenges to satisfaction of Commissioner based taxation liability provisions – Income Tax Rates Act 1986 (Cth) s 18 – whether part – year residency periods applied pursuant to s 18 subject to qualification by 183 day residency test

Legislation: Income Tax Assessment Act 1936 (Cth) s 6 Income Tax Rates Act 1986 (Cth) ss 4, 18 Social Services Act 1947 (Cth)

Cases cited: Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Commissioner of Taxation v Harding [2019] HCA Trans 91 Commissioner of Taxation v Miller (1946) 73 CLR 93 Commissioners of Inland Revenue v Lysaght [1928] AC 234 Gregory v Deputy Federal Commissioner of Taxation (1937) 57 CLR 774 Hafza v Director-General of Society Security (1985) 6 FCR 444 Harding v Commissioner of Taxation (2018) 108 ATR 137 Harding v Commissioner of Taxation (2019) 365 ALR 286 Koitaki Para Rubber Estates Ltd v Federal Commissioner of Taxation (1941) 64 CLR 241 Kolotex Hosiery (Australia) Pty Ltd v Commissioner of Taxation (1975) 132 CLR 535 Levene v Commissioners of Inland Revenue [1928] AC 217 Re Dempsey and Federal Commissioner of Taxation (2014) 98 ATR 698 Re Groves and Federal Commissioner of Taxation (2011) 85 ATR 323 Taylor v Natwest Australia Bank Limited (1992) 37 FCR 194