Harding and tax residency – High Court dismisses residency appeal

The High Court has refused Special Leave for the ATO to appeal the decision of the Full Federal Court in Harding v Commissioner of Tax [2019] FCAFC 29.

This creates legal certainty that a “permanent place of abode” outside of Australia is by reference to the wider location of a country, and is not narrowly limited to a single unit of accommodation.

For the first time, long-term residents in other countries can organise their accommodation within a country without fear that the ATO will consider successive homes to be an indicator of inpermanence when applying the test of a permanent abode.

As this test is only one of four tests of tax residency, living long-term in another country does not guarantee a person has broken tax residency of Australia. However, the decision in Harding provides clarity for this particular test.