Tan and Commissioner of Taxation (Taxation)

The Administrative Appeals Tribunal considered the tax residency of Mr Tan for the income year ended 30 June 2015. The dispute arose from the Commissioner of Taxation's objection decision, which Mr Tan sought to have reviewed by the Tribunal. The core of the matter concerned the application of the Australia/Malaysia double taxation agreement (DTA) to determine Mr Tan's residency for tax purposes, given he was considered a resident of both countries.

The Tribunal was required to determine three key issues. Firstly, whether Mr Tan was an Australian resident for Australian tax purposes under the relevant provisions of the *Income Tax Assessment Act 1997* and the *Income Tax Assessment Act 1936*. Secondly, if he was an Australian resident, whether he was also a Malaysian resident for Malaysian tax purposes during the same income year. Thirdly, if he was a resident of both countries, how the "tiebreaker" test within the Australia/Malaysia DTA applied to resolve his dual residency status.

It was common ground that Mr Tan qualified as an Australian resident for Australian tax purposes for the 2015 income year, satisfying both the "ordinary concepts" test and the "183 day test". The Tribunal then examined whether Mr Tan was also a Malaysian resident under Malaysian tax law, which requires an individual to be in Malaysia for 182 days or more in the relevant "basis year". The provided text details the initial stages of this analysis, establishing Mr Tan's Australian residency and outlining the criteria for Malaysian residency. The Tribunal ultimately affirmed the Commissioner's decision under review.