Oberg v CofT – Australian national working overseas for 23 years still an Australian tax ‘resident’ under the ‘ordinary meaning’ of that term

On 13 December 2021, the AAT held that an Australian national, who worked overseas for 23 years, was still an Australia resident, for tax purposes, under the ‘ordinary meaning’ of that term. This was despite not being in Australia, for 183 or more days, in either of the years for which the Commissioner assessed the taxpayer, on the basis that he was resident.

The facts were these.

1. The taxpayer worked for a global mining company for approximately 23 years, mostly working overseas.
2. For the years in question (2014-15 to 2017-18) he lived firstly in Indonesia and then in Mongolia.
3. His assets were a house in Perth where his wife lived, a houseboat moored in WA, a factory unit in WA, which he owned jointly with his wife, a number of vintage cars, which were stored in the factory unit and shares in an Australian company.
4. His main hobbies – restoring and collecting vintage cars and using his houseboat – were Australian based.
5. While overseas, most of the taxpayer’s income was paid into his Australian bank account.
6. He had Indonesian and Mongolian bank accounts, but mainly used an Australian credit card for living expenses.
7. During the relevant income years, the taxpayer was physically present in Australia for a minimum of approximately 79 days (2016-17) and a maximum of approximately 104 days (2015-16).
8. His wife contemplated moving to Mongolia in both 2016 and 2017, but each time her parents’ deteriorating health resulted in her deciding to stay in Australia.

The AAT was reasonably satisfied on the evidence that the taxpayer was a resident of Australia for tax purposes, according to the ordinary meaning of that term. The more significant factors supporting this conclusion were:

• retaining a family home in Australia;
• using the family home’s address as his address for his overseas employment contracts;
• retaining and using an Australian bank account and credit card;
• returning to Australia for significant events (eg birthdays and Christmas); and
• pursuing hobbies mainly in Australia.

(Oberg and FCT [2021] AATA 4606, AAT, Evans-Bonner SM, 13 December 2021)   [LTN 243, 16/12/21]

[Tax Month – December 2021 – Previous 2021] 5.1.22