The issue is whether Laurence Wong (LW) is a resident of Australia for tax purposes from the period 1st of July 2009 until the 30th of June 2012, given that LW has been living and working abroad in Singapore from July 2009. Residence is an important consideration for this case as under s6-5(2) of the ITTA1997 if LW is a resident his income from all sources will be taxable in Australia whereas if he is a foreign resident his assessable income would only include income from Australian sources, e.g. his Australian listed share dividends and his rent from the rental of his family home.
The complicated facts are that LW signed a 3-month contract on the 1st July and then went on to sign a 3-year contract on the 5th of October 2009. In May 2012, LW returned to Australia due to family illness.
Rules
A person is a resident if he/she resides in Australia under Section 6(1)(a) of ITAA1936 and includes a person
i) Whose domicile is in Australia, unless the Commissioner is satisfied that the person’s permanent place of abode is outside Australia. ii) Who has actually been in Australia, continuously or intermittently, during more than one half of the year of income. iii) Who is:
a) A member of the superannuation scheme established by deed under the superannuation act 1990; or
b) An eligible employee for the purposes of the Superannuation Act 1976; or
c) The spouse, or a child under 16, of a person covered by sub-subparagraph (A) or (B)
Section 6(1)(a) of the ITTA1936 defines a resident of Australia as a person other than a company who resides in Australia. Under common law, this test is referred to as the ordinary concepts test. In the cases of Levine v IRC (1928) and IRC v Lysate (1928), it was held that a broad range of factors will be considered in determining ordinary residence such as the maintenance of a place of abode in Australia for tax payer’s use, the person’s family and social ties and if the person is a visitor, the frequency, regularity and duration of visit

Application

Clearly, under the common law test, LW is not a resident of Australia during the relevant years. He does not maintain a place of residence in Australia, all his significant family and business connections are in Singapore and under Levine v IRC (1928) and IRC v Lysate (1928), do not apply as he does not make regular and frequent visits to Australia.

Under the domicile test- s6(a)(i), although he clearly is an Australian domicile as he has not made Singapore his permanent home in the everlasting sense and he clearly has not migrated迁移to Singapore, he is also a non-resident of Australia as he appears to have established a permanent place of abode in Singapore. Under Applegate v FCT, the expression "Permanent place of abode” was held to mean more than temporary or transitory but less than an intention to live in a particular place outside Australia forever.

In the case of FCT v Jenkins, the court held that although the taxpayer’s domicile was Australia, (as he intended to return to Australia and he could not be said to have intended to migrate to Vanuatu) he had still established a permanent place abode outside Australia during the relevant years, despite not having the intention目的 to stay for more than a 3 year period and by entering fully into social and recreational activities. It was found that his stay in Vanuatu was substantial enough though it was not in the everlasting sense.

Similarly, LW had leased his family home in Australia, signed a 2 year lease on a home in Singapore, placed his children in an international school and taken out a one-year gym membership on the 1st of October. He had also shown his willingness to consider staying a further 4 years pursuant to the option offered to him. The fact that he had entered into social and recreational activities in Singapore indicates he has established a permanent place of abode, in which his stay was more than temporary however less than forever as he has the intention to return to Australia, his domicile. In addition to this, under the Tax Ruling IT 2650, LW has met the criteria of staying in another overseas country for a substantial period of time which is 2 years.

• the intended and actual length of the individual’s stay overseas;
• the continuity of the individual’s stay overseas;
• whether the individual intends to return to Australia at some definite point of time;
• whether the individual has established a home overseas; and whether any residence exists in Australia or has been abandoned.

183 day test – no application as LW did not spend 183 days in Australia in any of the relevant years and while in Singapore, Australia was not his usual place of residence and he did not intend to reside in Australia.

Superannuation test – no relevance as LW was not a member of a Commonwealth Superannuation Fund for government officers.

Conclusion
Thus it is evident that LW would not be considered an Australian resident for tax purposes for the period of October 2009 to May 2012. Whilst LW's domicile is Australia, he had entered into social and recreational activities, creating a permanent place of abode, in Singapore which concludes that his stay was more than temporary (s. 6 (1) (a) (FCT v Jenkins).