LAW2499-Taxation Law and Practice

Facts

Mr B. Lightyear is an Australian national having been born here in June 1978. He is an Australian citizen and holds an Australian passport. He also holds a Canadian passport

Mr B. Lightyear started his working life as a cardiac surgeon with BAE International Hospital Systems, a largely not-for-profit hospital that assists underprivileged persons. He left Australia at a relatively young age and was married to his first wife (Ms Tracey Lightyear – a British national) on 20 July 2000 in Canada. 

In December 2000, Mr B. Lightyear’s employment with BAE International Hospital Systems caused him and his wife to move to a town in South Africa. Mr and Mrs Lightyear lived there for about 7 years after which they moved to West Africa. For all of that time Mr B. Lightyear continued his employment with BAE International Health Systems. During this period Mr and Mrs Lightyear had two-children and, on each occasion, Mrs Lightyear returned to Canada for their birth and only returned once they were about six weeks old.

Mr and Mrs Lightyear enjoyed life in West Africa as part of the expatriate community. Mr. B Lightyear’s skills were also highly sought after Africa and provided him with lucrative employment opportunities

Due to internal civil unrest in 2007, including a number of armed attacks that occurred in the area that the Lightyear’s were living, Mrs Lightyear returned to Canada with her two daughters where those girls continued their schooling. 

Although they returned to West Africa in September 2009, in the following year Mr and Mrs Lightyear decided to relocate to Australia. For Mrs Lightyear the move to Australia was always intended to be temporary and only until the security situation in Africa improved.

At this time, she was pregnant with her third child. In Australia, Mr and Mrs Lightyear built a house in Wollongong in New South Wales, which was completed in early 2012. It appears that the location was chosen due to its proximity to Mr B. Lightyear’s parents and siblings.

Mrs Lightyear and her two girls moved into the property in July 2012. Mr B. Lightyear remained in West Africa until March 2014 at which time he decided to leave Africa and rejoin his family in Australia.

In Australia, Mr B. Lightyear moved into the family home at Wollongong. He commenced working for a hospital called FESTA as a lead cardiac surgeon. Although he enjoyed this role and being back in Australia, he was receiving significantly less income than was available to him in Africa. The reduced remuneration had the consequence that the lifestyle which he had previously enjoyed was affected and somewhat diminished. That said, he remained in Australia for approximately three years.

In January 2017, he received an offer of employment to join University Hospital, which was a Toronto-based hospital in Canada. The offer was to work in their offshore hospital in South Africa as the Chief cardiac surgeon. The salary attached to the position, being USD$1,075,000, was substantially in excess of what he was then receiving being AUD$315,000 and, in those overseas jurisdictions, his income would be taxed at substantially lower tax rates.

Mrs Lightyear had agreed that their three children and her would relocate to South Africa in or around July 2018. This would give her husband a chance to see whether he liked his new position. Mr B. Lightyear claims that when he left Australia in January 2017, he did so with an intention to live and work in South Africa permanently or, at least, indefinitely. He said he had no fixed intention of when or if he would return to Australia. He also claimed that he expected that Mrs Lightyear and their children would join him in South Africa around July 2018 and that they would live with him.

He further said that when he left in January 2017 he did not expect to ever live in the property at Wollongong again. For that reason, he took his clothes, suits and other personal belongings with him to South Africa. He sold all of his significant personal possessions in Australia including his boat and his car. Although some of his possessions remained, they were not of a type which Mr B. Lightyear ever intended to use again. These included fishing gear and a small tin runabout, as well as water skis.

He retained joint ownership of the family home in Wollongong with his wife. However, he intended that to be for the use and enjoyment by his wife and his children whilst they remained living here.

Mr B. Lightyear did return to Australia each year. Generally, he did so when it was convenient to his working conditions. When he returned he stayed in the Wollongong property with his family. He claimed that he did so because that was where his wife and family resided but that he was then effectively only visiting them. Moreover, he did not intend to take up full time work in New South Wales ever again

From about January 2017 until about November 2018, Mr B. Lightyear lived and worked in South Africa. He had entered into an employment contact with University Hospital. While the contract was for a duration of 12 months, it is apparent the agreement was varied and extended over time. For the full extent of the period during which he was living and working in South Africa, he only ever signed the one employment agreement. Since University Hospital was Canadian-based, Mr. Lightyear was required to travel to Canada for one weekend each month for Continuing Medical Education (CME) at the Toronto-based University Hospital.

During the time Mr B. Lightyear lived in South Africa, he resided in an apartment building called “Forky Towers”. Whilst he moved from unit to unit as his circumstances required, he remained located in the same unit block. Initially he took a two-bedroom apartment because he believed this his wife and children would visit him from time to time. He remained in that apartment from 10 February 2017 until 9 February 2018.

Unfortunately, in 2018 his marriage broke down and he realised that his wife would not be moving to South Africa, he moved in to a one bedroom apartment where he remained until 9 February 2019. However, by 10 February 2019, he had formed a relationship with a Ms Bonnie who wished to live with him and that had the consequence that he moved back into a two bedroom apartment with a full sized kitchen.

All the apartments that Mr B. Lightyear occupied were fully furnished apartments and the additions which Mr B. Lightyear made to the contents of the apartment were more for comfort rather than out of necessity and were not enduring.

Each of the apartments was leased from the same South African national who owned all three apartments in which Mr B. Lightyear lived.

Pursuant to the lease agreements, Mr B. Lightyear was responsible for utility charges to the extent to which they exceeded South African rand ZAR65 per month. He was responsible for telephone charges. The units were not serviced per se, however, Mr B. Lightyear utilised the facilities offered by the apartment building complex to secure the services of a cleaning lady once a week.

Mr B. Lightyear claims that these units became his home and, when he went on holidays, he would leave his personal belongings there. He had exclusive possession of the apartments pursuant to the leases.

Required:

Mr. Lightyear has just narrated these facts to you, and seeks your advice. According to case law and the relevant legislation in ITAA36 and ITAA97, is Mr B. Lightyear an Australian resident for tax purposes for the year ending 2017 and 2019?

In answering this question, you must examine all the facts of the case as described above and make a conclusion on balance.

You should refer to the rubric provided on the relevant “assignments” page for the detailed requirements of this assignment. 

You must also use the template provided.