Pike v Commissioner of Taxation [2019] FCA 2185

FEDERAL COURT OF AUSTRALIA

Pike v Commissioner of Taxation [2019] FCA 2185 File number: QUD 618 of 2018

Judge: LOGAN J

Date of judgment: 24 December 2019

Catchwords: TAXATION – residency of taxpayer – where the taxpayer moved to Australia from Zimbabwe – where the taxpayer was first an Australian permanent resident for migration purposes and then an Australian citizen – where the taxpayer's de facto wife and children reside in Australia and are citizens – where the taxpayer lived and worked in Thailand for eight years – where the taxpayer subsequently lived and worked in Tanzania and the United Arab Emirates – where the taxpayer maintained a rented family home in Australia – where the taxpayer returned to Australia sporadically – definition of "resident" in s 6(1) of the Income Tax Assessment Act 1936 (Cth) – ordinary meaning of "resident" – whether the taxpayer could be resident of two countries simultaneously according to its ordinary meaning TAXATION – residency of taxpayer – sub-paragraph (a)(i) of the definition of "resident" in s 6(1) of the Income Tax Assessment Act 1936 (Cth) – whether the taxpayer was domiciled in Australia – s 10 of the Domicile Act 1982 (Cth) – whether the taxpayer formed an "intention to make his… home indefinitely" in Australia – degree of proof needed to prove a change in domicile – whether the Commissioner ought to have been satisfied that the taxpayer had definitely abandoned his Australian residence INTERNATIONAL LAW – TAXATION – interpretation of double taxation agreements – where Australia entered into a double taxation agreement with Thailand – where the taxpayer was a resident of both Thailand and Australia – where Article 4 of the double taxation agreement provides rules for deeming for tax purposes that a person resident of both Thailand and Australia will only be resident in one – application of Article 4 – whether the taxpayer has a permanent home in either Australia or Thailand – whether the taxpayer has a habitual abode in either Australia or Thailand – whether the taxpayer has closer personal and economic relations to Australia or Thailand