Du v Chief Commissioner of State Revenue

In the case of Du v Chief Commissioner of State Revenue, the Applicant sought to challenge an assessment for a surcharge land tax imposed by the Chief Commissioner of State Revenue. The dispute centered around whether the Applicant was considered a foreign person for the purposes of the tax legislation and, if so, whether the Applicant was ordinarily resident in Australia. The Applicant argued that they were not a foreign person and not ordinarily resident, despite having been absent from Australia for more than 200 days during the relevant period. The case was heard in the Federal Circuit Court of Australia.

The court was required to determine whether the Applicant was a foreign person under the relevant legislation and, if so, whether they were ordinarily resident in Australia. A foreign person, as defined in the legislation, includes an individual who is not an Australian citizen or Australian permanent resident. Additionally, the court needed to consider the criteria for determining ordinary residence, which includes the physical presence test, the domicile test, and the place of residence test. The Applicant's absence from Australia for more than 200 days during the relevant period was a central issue in this case.

The court examined the Applicant's circumstances and found that they were indeed a foreign person as they were not an Australian citizen or permanent resident. The court then considered the ordinary residence test and noted that the Applicant had been absent from Australia for more than 200 days. The reasons for the Applicant's absence were found to be insufficient to rebut the presumption of non-residence. The court held that there was no discretion to determine otherwise and that the Applicant was not ordinarily resident in Australia for the purposes of the legislation. Consequently, the Applicant was subject to the surcharge land tax as a foreign person not ordinarily resident in Australia.

The court remitted the assessment to the Chief Commissioner of State Revenue for determination in accordance with these reasons. The Applicant's challenge to the assessment was unsuccessful, and the surcharge land tax remained in place.