Arjunan and Commissioner of Taxation (Taxation)

This case concerned an appeal by the Applicant against a decision of the Commissioner of Taxation regarding his residency status for Australian taxation purposes for the 2016 income year. The Applicant, who was born in India, immigrated to Australia in 1994, became an Australian citizen in 1999, and owned a family home in Brisbane which was not offered for sale or rent during the relevant period. The dispute arose from the Applicant's period of overseas employment in Kuwait for approximately seven months, and whether this rendered him a non-resident for Australian tax purposes.

The Tribunal was required to determine whether the Applicant was an Australian resident according to three tests: the Ordinary Concepts Test, the Domicile Test, and the 183-Day Test. The Applicant contended that he was not an Australian resident, arguing that his domicile was outside Australia, his permanent place of abode was outside Australia, and that he spent less than 183 days in Australia, or alternatively, that his usual place of abode was outside Australia and he did not intend to take up residence in Australia. The Applicant also sought to rely on a private ruling previously issued by the Commissioner.

The Tribunal considered the Applicant's circumstances in light of the relevant tests and case law, including a comparison with the facts in *The Engineering Manager and Commissioner of Taxation*. The Tribunal found that the Applicant regarded his Brisbane home as his home at all times and his accommodation in Kuwait as merely temporary. The Tribunal distinguished the Applicant's situation from *The Engineering Manager*, noting significant differences in the duration of overseas employment, the extent of personal belongings taken overseas, the purpose of retaining the Australian home, and the Applicant's intentions regarding his Australian residence.

Ultimately, the Tribunal was satisfied that the Applicant was a resident of Australia during the 2016 income year pursuant to the 183-Day Test. Consequently, the Applicant failed to discharge his onus to prove that the Commissioner's assessment was excessive or incorrect. The decision under review was affirmed, meaning the Applicant must include his foreign-sourced income in his assessable income for the 2016 year.