The AAT has affirmed that a taxpayer who lived and worked in the Philippines for the 2009-10 and 2010-11 years was a resident of Australia for tax purposes as he was a member of a Commonwealth superannuation scheme.
The taxpayer was employed by the Department of Defence and took a leave of absence on 21 June 2009 to take up employment as a contractor with the Australian Embassy in the Philippines. He eventually resigned from his Department of Defence position on 18 May 2011 in order to continue to live and work in the Philippines. The taxpayer sought a private ruling from the Commissioner regarding his residency status for tax purposes for the 2009-10 and 2010-11 years. The Commissioner ruled the taxpayer was a resident of Australia for the relevant years as he remained a member of a commonwealth superannuation scheme. The taxpayer objected and broadly argued that he was not a member of the super scheme for the relevant years as he was not a permanent or ongoing employee of the Commonwealth.
The Tribunal said the taxpayer’s employment status as an ongoing employee of the Department of Defence, continued through his leave of absence under the Public Service Act 1999. Therefore, it held that as a full-time employee the taxpayer continued to qualify for membership of the Commonwealth superannuation scheme. Further, the AAT held the membership was active even though he was not obligated to make contributions during the relevant period. The Tribunal also noted that had the taxpayer departed Australia after his employment with the Department of Defence had come to an end, he would have ceased to be a member of a Commonwealth superannuation scheme and his Australian residency status for tax purposes would not have become an issue.
(AAT Case [2012] AATA 168, Baker and FCT, AAT, Ref Nos: 2011/4680-4681, Webb M, 16 March 2012.)
[LTN 53, 19/3]