VIC Working Overseas - Do I Have to Pay Tax?

[unni menon]

I am living and earning overseas (working overseas). I have a permanent home overseas for the last 17 years. After I came to Australia in 2008, my family stayed back in Australia and I continued to live and work overseas. I am a dual citizen overseas. My family continued to live in Australia at our home. I spent less than 183 days a year in Australia. I just come here for visiting my family, before going overseas.


My question, do I have to pay tax in Australia on my overseas income?

 

[Sarah J]

Hi Unni Menon,

The distinction between an "Australian resident for taxation purposes" and a non-resident is fine and complicated. There have been cases that show merely satisfying the the 6 months abroad criteria does not make you a non-resident.

You need to show you have established a "permanent home abroad". This means:

• Exclusive possession of a property;
• Staying in that property for a long time and not switching countries during this time.

This is countered by evidence indicating you still have a presence in Australia, such as:

• Maintaining family connections in Australia;
• Owning a home in Australia;
• Maintaining a "continuity of association" with Australia despite physical presence overseas.

Basically, you need to satisfy the dot-point criteria (e.g. 6 months of the financial year abroad). Having satisfied this, you need to show you have "established a permanent home abroad".

You claim to have a permanent home overseas, for the past 17 years, however, there's not enough facts given to know whether this is the case or whether this is enough to satisfy the ATO test.

Take the ATO's residency test (leaving Australia) and contact the ATO for further advice.

 

[unni menon]

Thank you very much Sarah.
My view is to rise above tax ruling of ATO and get a courts view. I was living in the home overseas before comming to Australia and continued to be based there after comming to Australia.( I have proof of this).

My point of law is: It is not justice to be adjudged a resident because my family is living here. My wife and I are separate tax entities. She and I file tax as separate individuals. The actions and rights of my wife as an Australian citizen to live here cannot influence my taxation as an individual.For example, when it comes to tax department making exemptions ( eg tax free threshold), by the other side of payment, by same law, we are considered separate individuals, when it comes to me making payment to them I am considered along with my wife. This is not justice by any account. This amounts to inequal status in law. This affects my equality granted to me by constitution of a democracy. It also effects t my commonlaw equality.

I am concerned about the law or its interpretation affecting my right to equality and fair justice.

I would be obliged if you could direct me in this regard.

Best Regards
Unni
[Personal Information deleted by Moderator - Breach of Community Guidelines]

 

[unni menon]

How does one go about representing oneself (without a lawyer) in an Australian court of law? What are the court fees, and how does one go about it?

 

[John R]

Hi @unni menon,
You may consider contacting a tax accountant that specialises in expat tax issues at first instance.
As @Sarah J set out, the residency test considers a number of factors, including the residence of your wife and family.
This PDF from BDO "Leaving Australia - An Employee's Tax Guide" also provides a good summary.
Hope this helps.

 

[unni menon]

Thank you so much John, the BDO publication is useful. Is it possible to self-represent in an Australian court of law?

 

[John R]

Hi @unni menon
As you may have seen from "The Castle", it is possible to self-represent in some courts and tribunals. That said, unless the court or tribunal is intended for self-representation (e.g. Family Court, NCAT, etc.), your case may be at a disadvantage. Hope this helps.

 

[unni menon]

Thank you very much
What would be approximate court fees?

 

[Sarah J]

Hi Unni Menon,

You would be looking at reviewing the decision of the ATO. This would be an administrative review, not really a court action, and would be heard in the Administrative Appeals Tribunal.

As for how to go about starting the review, read "Applying for a review" and "Steps in a review".

It is possible to appear before the AAT without a lawyer. However, I would not recommend it. Taxation law is notorious for being one of the most difficult areas of law (this is why taxation lawyers are generally paid higher than lawyers in other practices). On top of this, you will need to understand administrative law, which is the particular avenue for challenging decisions made by government institutions. Administrative law is also quite complex. While you may believe your arguments make sense, a judge may not be as persuaded as they may not "hit" the legal grounds for a challenge. This is why I suggest you see a lawyer, even if you just to talk to them about the general merits of your case.

I am not familiar with the costs of a review at the AAT. The best place to find this out is by browsing the AAT website or call them up and ask.

As I wrote in my previous post, there are two tests you need to meet before you get "non-residency" status:

1. You do not ordinarily reside in Australia (this is generally satisfied if you tick off the 6 month criterion); AND
2. You have established a permanent place abode during this time (meaning, you have no intention of returning to Australia to live).

If you do want to challenge the ATO, I would suggest you read the following cases to familiarise yourself with previous rulings by the AAT and why they came to their decisions:

• Boer v Commissioner of Taxation (unsuccessful, failed the second test);
  
• Sully v Commissioner of Taxation (unsuccessful, failed the second test); and
  
• Sneddon v Commissioner of Taxation (unsuccessful, failed the second test);
• Mayhew v Commissioner of Taxation (successful, met the second test).

If you're self-representing, you will need to argue why your case is principally different from the first three cases and more alike the last. If you had a lawyer to advise you, this process would be a whole lot easier.

 

[unni menon]

Excellent information, Sarah. I will keep you posted on this