Private ruling: Residency
Date of advice: 25 June 2020
Published: August 2020
Ruling period: Year ended 30 June 20XX | Year ended 30 June 20XX | Year ended 30 June 20XX
Date scheme commenced: 1 July 20XX

Ruling: Q1: Are you a resident of Australia for income tax purposes commencing 1 July 20XX? | A1: Yes | Q2: Are you a resident of Australia for the purposes of the Double Tax Agreement between Australia and Country A during your stay in Australia? | A2: No

Relevant facts and circumstances: You, your spouse and children were born in Country A. You and your spouse are both citizens of Country A and Australia. You and your spouse are both tax residents of Country A. You have dependent children. Your extended family lives in Country A. You hold business ties in Country A as follows: · You have been in property development since 20XX. · You have owned Company B since 200X. · You co-foundered Company C in 20XX. · You manage accommodation. · You are a major shareholder of Company C. Your business ties in Australia are as follows: Company D · You are a director of Company D. · You are one of three directors of this company. · This company was incorporated and established in Australia in order to carry out the 20XX development project in State A. · You hold regular meetings in State A in order to fulfil your role effectively. · You are involved in detail design, marketing and project management in relation to this company. Company E · You are the sole director of Company E. · This company was incorporated and established in Australia. · Company E holds a XX% ownership interest in Company D. · Company E is a holding company that has no operational activities. Trust A · Trust A is the sole shareholder of Company E. · You are the sole trustee of the Trust A. Your spouse is involved in a group of investment and philanthropic companies in Country A. Your spouse is also a shareholder, trustee and director of this group. You and your spouse own two homes in Country A. Your home in Suburb A has been the family home since 20XX and you have advised us this will remain the family home. Your property in Suburb B was acquired in 20XX and is currently listed for sale. Your family heirlooms are housed in the Suburb A home. You have lived in the following countries: · 19XX to 19XX - Country B, · 19XX to 200Y - Country A, · 200Y to 20XX - Australia, · 20XX to 20XX - Country A, · 20XX to present - Australia. In 200Y you and your spouse were granted a visa and settled in State A. You worked on a two-year development project at this time which took four years to complete due to the Global Financial Crisis (GFC) causing delays. You purchased a property in State B at this time which was sold in 20XX. You rented after this time until your return to Country A. Your spouse did not work whilst you were in Australia during this period. Trust A, an Australian trust, and Company E were the investment vehicles for the 200Y project. You opened Australian bank accounts at this time due to visa application requirements. You earned interest from these accounts. You hold no superannuation in Australia. You lodged Australian income tax returns during the 200Y project. You and your spouse were granted Australian citizenship in 20XX. You have never been enrolled to vote in Australia. In 20XX, you commenced a new development project in State A. This 20XX project is expected to have a two-year timeframe. The 20XX project is carried out by Company D. This project is funded by banks, shareholders and investor funds. Income is expected from the project when the construction is completed, and the sale of units is finalised. Construction has not yet commenced on the project due to Covid19 setbacks. The income from this project is expected to be minor in comparison to your interests in Country A. You have relocated to Australia with your spouse, children and family pets. You have no intention to live in Australia permanently and will continue to hold the Suburb A home for exclusive use. You intend on returning to Country A often and for holidays. You have purchased return tickets for the Christmas holidays. You and your spouse retained Country A drivers' licences however sold your vehicles. You and your spouse have acquired Australian drivers' licences and purchase vehicles since arrival. You have not had mail redirected to Australia. You and your spouse will continue to vote in Country A elections. You have retained Country A bank accounts. You have advised us that XX% of your wealth remains in Country A. You have moved X% of your wealth to Australia due to project requirements. Your family has applied for Medicare. You have indicated on immigration cards that you intend on staying in Australia for 12 months. You did not acquire private health cover in Australia as the Country A policy continued to provide cover for 90 days. Your eldest child is attending University and the younger children attend a local school in State A. You purchased a property in Australia in 20XX. You purchased this home as rentals are restricted due to having pets. You view this property as an investment and intend on selling in two or three years. You relocated with essential furniture such as beds. Your spouse will not work whilst you are in Australia, however, will continue to meet director duties in Country A as needed through either telepresence or by returning to Country A. You will continue to perform your Country A duties whilst working on the 20XX project. You and your spouse have booked several flights to enable you to return to Country A throughout the year however many of these have been cancelled due to Covid19 travel restrictions. You have not sought formal advice on taxation from the Country A taxation authorities however have obtained an opinion from your tax professional in Country A. Your tax professional believe you will continue to be a Country A resident and that the tiebreaker test will be required if the Commissioner finds you a tax resident of Australia.


Reasons for decision: Summary: You are a resident of Australia for taxation purposes according to subsection 6(1) of the Income tax Assessment Act 1936 from your arrival in Australia in 20XX. For the purposes of the double tax agreement between Country A and Australia, you are a tax resident of Country A under the tiebreaker test. | Detailed Reasoning - Detailed reasoning: The terms 'resident' and 'resident of Australia' are defined in subsection 6(1) of the Income Tax Assessment Act 1936 (ITAA 1936). The definition has four tests to determine whether an individual is a resident for tax purposes. These tests are: The resides test (residence according to ordinary concepts) The domicile test The 183 day test The superannuation test The primary test for deciding the residency status of an individual is whether the individual resides in Australia according to the ordinary meaning of the word 'resides'. This is known as the 'resides test' or the 'ordinary concepts test'. Where the individual does not reside in Australia under this test, they will still be a resident of Australia for tax purposes if they satisfy one of the other three tests. While principles identified in authorities are relevant across cases, factual differences between cases can alter how those principles affect the outcome and no cases have exactly the same facts. Each case must therefore be decided on its own merits. Logan J observed at paragraph 8 of Dempsey that: '...it is of cardinal importance not to elevate into matters of principle in a later case particular facts found decisive in the different circumstances of an earlier case.' Therefore, it is important to consider whether a taxpayer is a resident of Australia on the facts of his or her particular case. | Detailed Reasoning - The resides test: The ordinary meaning of the word 'reside' is 'to dwell permanently or for a considerable time; having one's abode for a time.' [1] According to the Compact Edition of the Oxford English Dictionary (1987) , to reside is 'to dwell permanently, or for a considerable time, to have one's settled or usual abode, to live in or at a particular place'. [2] The definition of 'resident' in the legislation requires us to ask, 'Does the person reside in Australia?' rather than, for example, 'Where in the world does the person reside?'. It is well-established that a person may reside in more than one place. [3] Residence is a quality of a person, and so is determined by a full examination of the facts and circumstances surrounding a person's connections to Australia and their physical presence. This will in turn determine if that presence is accidental or occasional (and so not consistent with residing in Australia), or whether it is settled and usual (and therefore consistent with residing in Australia). Even though the person may consider a country other than Australia to be their home, the nature of their connections with Australia may result in them also being properly characterised as residing here, even if they also reside in the other country. [4] This may be so even if they are here temporarily, and only for business or pleasure. [5] The converse may also be true. The outcome depends on all relevant, objective facts. Once a person has established a home in a particular place, a person does not necessarily cease to be resident there because he or she is physically absent. A person will continue to be a resident if he or she has maintained a sufficient continuity of association with that place together with an intention to return to that place and an attitude that that place remains "home". [6] Factors such as a home, a family unit, possessions, relationships with people and institutions and the like are all relevant to the determination of whether the person has maintained a presence in the community as a resident despite being physically absent. [7] The correct approach is to look to objective facts that connect a taxpayer to Australia and ask whether the connection is sufficient such that a person can be said to 'reside' in Australia, notwithstanding that that person may also reside in another place. However the person's connections to, and behaviour while in, another country may be of relevance to answer the statutory inquiry of whether a person resides in Australia. In Re Iyengar v FCT [2011] AATA 856 ( Iyengar ), Senior Member Walsh identified a number of factors that the courts have taken into account when determining a taxpayer's residence according to ordinary concepts, namely physical presence; nationality; history of residence and movements; habits and mode of life; frequency, regularity, and duration of visits; purpose of visits to or absences from a country; family and business ties with a country; and maintenance of a place of abode. While not exhaustive, this contains a useful list of factors to consider, and each of these factors will be considered below. The weight to be given to any factor will vary with the individual circumstances and no single factor is necessarily decisive. | Detailed Reasoning - Physical presence: A person's physical presence in Australia is relevant to whether they reside here. The number of days a person is physically present in Australia, the duration of their stay, and the frequency of their visits, are all relevant, but are not alone determinative, of residency. A person can be absent physically from Australia for a temporary purpose, even one exceeding a tax year, without ceasing to reside in Australia. [8] Conversely, a person who is present in Australia for a short period can reside in Australia if their presence in Australia demonstrates a degree of continuity, routine or habit consistent with residing here. In 20XX, you entered Australia with the intention of remaining for the duration of a construction project. This project is expected to take two years. Due to Covid19 issues, construction on the project was delayed. You have provided us with information to show your intention to travel back to Country A in order to holiday and perform other business duties. Several flights were booked for you January, February, March, May, June and August for a duration of approximately one week. You were unable to return to Country A as planned on a number of these flights as Covid19 travel restrictions prevented departure. You have indicated that you have set up a home in Australia and will use this as a base for the next two to three years. You have purchased this property and moved with their children, pets and essential furniture. | Detailed Reasoning - Nationality: In Iyengar, Senior Member Justice Walsh identified that in cases that could go either way, the citizenship of a person may not be completely irrelevant in the conclusion to be drawn from all the relevant facts. [9] The Gregory [10] case highlight's that a taxpayer can be a resident in more than one place at a time. You were born in Country A. You also hold Australian citizenship. | Detailed Reasoning - History of residence and movements: The Gregory case identifies that in some cases it is important to consider an individual's movements before and after the period in question when considering an individual's history of residence and movements. The Lysaght [11] decision confirms that a taxpayer's history of visiting could evidence whether a taxpayer is a resident if the particular circumstances suggest that that was the position. Your Australian citizenship was granted in 20XX when you resided in Australia for a two-year project commencing in 200Y. You moved their family to Australia and purchased a home at this time. This project was not finalised within the two-year period. Due to delays, completion occurred in 20XX. Whilst in Australia for the 200Y project period, you lodged income tax returns for the years ending 30 June 20XX and 30 June 20XX indicating you were a resident. This previous stay in Australia appears similar in circumstances to your current 20XX project and family set up. | Detailed Reasoning - Habits and mode of life: Another relevant factor in terms of assessing a taxpayer's residency is to look at the degree to which the taxpayer's social activities have adjusted. It is necessary to examine whether there has been any change or break in the mode of life which would lead to the conclusion that a taxpayer has ceased to reside there. The Iyengar case supports this view. The courts generally have found that a significant degree of engagement with the local lifestyle, especially in conjunction with the abandonment of previous activities, suggests that a taxpayer's residency has shifted. In your case, you have advised us that social and extended family connections remain in Country A and that you intend to retain membership of social and local groups abroad for the duration of your time in Australia. You have also advised us that your children have commenced school and university since arriving. The Landy [12] case, highlighted the importance of other factors such as Medicare and electoral enrollments. At the time you submitted your ruling application the family did not have Australian private health cover as the existing foreign cover provided 90-day coverage. You have applied for the Australian Medicare system and obtained an Australian drivers' license. You do not intend on enrolling to vote whilst in Australia. You will continue to vote in Country A during your Australian stay. You have indicated that the family intend to stay for approximately 12 months on immigration cards and have retained your Australian and Country A bank accounts. | Detailed Reasoning - Frequency, regularity, and duration of visits: Where a person is resident in one country and visits another, the frequency and regularity of their visits is an important factor to be considered in determining whether or not they are resident in that other country: Lysaght v Inland Revenue Commissioners (1928) 13 TC 511; Shand; Subrahmanyam; Applegate; Efstathakis and Pechey. However, as illustrated in Lysaght, the mere fact that the visits are of short duration does not of itself exclude residence in that country: see AFITR at [29-045]. Both you and your spouse expect to return frequently to Country A for one or two weeks at a time in order to perform business duties. You also intend to return with the children for the Christmas holidays. The remaining time will be spent mostly in Australia due to commitments with the 20XX project. | Detailed Reasoning - Purpose of visits to or absences from a country: A person's intention, purpose or reason for being in Australia may assist in determining whether an individual resides here. While individuals may have multiple reasons, there is usually a main purpose to their presence. [13] A subjective statement regarding future intentions is not determinative. In your case, you have invested in a development project which requires presence in Australia in order to perform the duties required. You also retain your Country A business connections and will divide time between the Australian and Country A business roles. It is also noted that your eldest child is currently attending an Australian University. | Detailed Reasoning - Family and business ties with a country: A factor that may indicate that a person resides here is the presence of their family. This does not mean the presence of their family always results in a decision that the individual resides here. [14] Location of a taxpayer's family is a relevant factor but not of itself always decisive under any of the residency tests. Your move to Australia for the 20XX project included your spouse and children. You also arranged to have essential furniture (apart from family heirlooms) and pets relocated. You are a director, shareholder and trustee of several Australian and Country A based companies and trusts. Your children attend schooling in Australia. You expect to be earning interest from your bank account whilst in Australia. | Detailed Reasoning - Maintenance of a place of abode: The presence of your family in Australia, particularly in a home that you maintain and to which you return, is likely to indicate that you reside in Australia. [15] It is only in exceptional circumstances that this will not be the case. You and your spouse have retained your family home in Country A. You have not rented this property and retain it for exclusive use. You and your spouse have also purchased a property in Australia. You view this purchase as an investment and intend on selling the property in two or three years. Your reasoning for purchasing a property in Australia was due to the lack of available rentals for tenants with pets. You have moved your family and furniture into this Australian property and have it available for exclusive use. | Detailed Reasoning - Your argument: You have advised us that you feel examples 2 and 4 of TR 98/17 are similar to your circumstances. In both these examples, the individuals were considered non-residents of Australia for income tax purposes. Both examples were based on the individuals undertaking research or study, both resided in temporary or basic accommodation and their families did not accompany them to Australia. Although both these examples show the individuals performing duties for their foreign business connections and may be considered to have stayed for a considerable amount of time in Australia, their behaviour is not consistent with residing here. Upon review of these examples, it is the Commissioner's view that your circumstances are more closely aligned to example 8 of the ruling. In example 8, the individual comes to Australia for an uncertain length of time. He sets up a branch of his company and signs a lease on a residence for 12 months. Although the individual's children do not accompany him due to them being college age, his wife relocated with him for the duration of his stay in Australia. The individual earned interest during his stay from his investments abroad. After 11 months, the couple returned to their family home. It was found that this individual was a resident for income tax purposes for the period he was present in Australia based on the following factors. He was accompanied by his wife He leased a property He established business ties. In this example, the taxpayer was found to be a dual resident and utilised the tie-breaker test in relation to his interest income. | Detailed Reasoning - Application to your circumstances: TR 98/17 [16] highlights that the way an individual arranges their domestic and economic affairs as part of their regular lives is a key factor in establishing their connection to a particular country. Individuals who work across multiple countries may maintain multiple homes in more than one country. Although an individual may consider themselves a resident in one country, a period of work assignment in Australia where they are accompanied by their family may mean that they are also residing in Australia for income tax purposes. An individual who enters Australia to set up a business or is dwelling here for a considerable time whilst engaging in business activities may also indicate the individual is residing here. [17] Occupying a dwelling in Australia that an individual owns or is purchasing, will suggest the establishment of a home in Australia. The purchase of other assets such as motor vehicles, sending children to Australian schools or universities and the presence of Australian bank accounts adds further weight to the fact that an individual has established a behaviour consistent with residing here. [18] In most cases, the Commissioner accepts that a visit to Australia of less than six months is not considered a sufficient time to be regarded as residing here. Your circumstances are consistent with being a resident of Australia under the resides test due to the following relevant factors: · Your established business ties in Australia · Your purpose of relocating to Australia is to undertake a project that will take a minimum of two years · Your spouse and children accompanied you to Australia · You hold Australian citizenship · You moved your household possessions and family pets to Australia · You purchased a property for exclusive use during your stay in Australia · Your children are attending school and university in Australia, and · You have applied for Medicare, obtained a drivers' licence and vehicles and hold an Australian bank account. You a resident of Australia under the resides test for income tax purposes. If a person meets the resides test, then they are a resident of Australia for tax purposes. | Detailed Reasoning - Residency status: Based on the above discussion, you satisfy the 'resides' test of residency. You have a stronger continuity of association with Australia than Country A. As it is not necessary for you to meet more than one test to determine residency there is no requirement to apply the domicile, 183 day or superannuation tests to your circumstances. For completeness, we have included analysis of these remaining tests in relation to your circumstances. You are a resident of Australia for income tax purposes for the year ended 30 June 20XX, 20XX and 20XX provided circumstances remain as per those circumstances outlined in this ruling. | Detailed Reasoning - The domicile test: Under the domicile test, you are a resident of Australia if your domicile is in Australia unless the Commissioner is satisfied that your permanent place of abode is outside Australia. | Detailed Reasoning - Domicile: Whether your domicile is in Australia is determined by the Domicile Act 1982 and the common law rules on domicile. Your domicile is your domicile of origin (usually the domicile of your father at the time of your birth) unless you have acquired a domicile of choice elsewhere. To acquire a domicile of choice in a particular country you must be lawfully present there and you must hold the positive intention to make that country your home indefinitely. The definition of 'indefinite' [19] refers to 'lasting for an unknown or unstated length of time'. Your domicile continues until you acquire a different domicile. Whether your domicile has changed depends on an objective consideration of all relevant facts. Mere assertions of intent are insufficient to acquire a new domicile of choice. A temporary relocation for work will not result in a change of domicile. Relocation for work on an uncertain time basis and in circumstances where the family does not accompany the individual is unlikely to result in a change of domicile. Taxpayers must be asked to prove that their domicile has changed and need clear, compelling evidence. In order to acquire a new domicile of choice, an individual is expected to have detached themselves from their country of origin. You were born in Country A. In 200Y you relocated to Australia for a business development project with your family. The 200Y project had a two-year completion timeframe which extended to four years. In 20XX, you obtained Australian citizenship. You purchased a property to reside in for the duration of the 200Y project which you later sold prior to your departure. In early 20XX, you again relocated to Australia for a business development project with your spouse and children. You continued to hold Australian citizenship and have not sought to have this revoked. You have retained your family home in Country A for exclusive use as well as purchasing a family home in Australia. You have retained your family connections and social memberships in Country A. You intend to remain in Australia for the duration of the 20XX project which was originally expected to reach completion in two years however due to Covid19 commencement has been delayed. Country A remains your domicile of choice as you have not detached yourselves from your country of origin. You have not made Australia your domicile of choice. You are not a resident under the Domicile test. | Detailed Reasoning - The 183 day test: Where a person is present in Australia for 183 days during the year of income the person will be a resident unless the Commissioner is satisfied that the person's usual place of abode is outside Australia and the person does not intend to take up residence in Australia. In your case, you and your spouse intend to return to Country A for approximately one week every month for business requirements and hope to spend Christmas in Country A with your family for two months. Based on this information, you will be present in Australia for more than 183 days. Therefore, you are a resident under this test. | Detailed Reasoning - The superannuation test: An individual is still considered to be a resident if that person is eligible to contribute to the Commonwealth Superannuation Scheme (CSS) or the Public Service Superannuation Scheme (PSS), or that person is the spouse or child under 16 of such a person. In your case, you are not a member of the CSS or the PSS or a spouse of such a person, or a child under 16 of such a person. Therefore, you are not a resident under this test. | Detailed Reasoning - Double Tax Agreement - tiebreaker test: Section 6-5 of the Income Tax Assessment Act 1997 (ITAA 1997) provides that where you are a resident of Australia for taxation purposes, your assessable income includes income gained from all sources, whether in or out of Australia. Where you have paid tax on your income in another country, you are entitled to claim a foreign income tax offset for the tax paid. In determining an individual's liability to pay tax in Australia it may be necessary to consider not only the domestic income tax laws but also any applicable double tax agreement. Section 4 of the International Tax Agreements Act 1953 (Agreements Act) incorporates that Act with the ITAA 1936 and the ITAA 1997 so that all three Acts are read as one. The Agreements Act overrides both the ITAA 1936 and ITAA 1997 where there are inconsistent provisions (except in some limited situations). Broadly, the agreement between Australia and Country A operates to allocate taxing rights between Australia and Country A, thus avoiding double taxation. Article 4 of the Australia and Country A Double Tax Agreement outlines that where an individual, is a resident of both Contracting States, then the person shall be deemed to be a resident only of the Contracting State in which a permanent home is available to the person. If a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident only of the Contracting State with which the person's personal and economic relations are closer. In Tan v Federal Commissioner of Taxation [2016] AATA 1062(Tan), the court summarised what should be considered in determining the question of personal and economic relations: As identified in Tan, the "OECD Commentaries on the Model Tax Convention on Income and on Capital: Condensed Version (OECD Publishing, 2010)" provides the following commentary on the meaning of "personal and economic relations" in Article 4(2) of the OECD Model Tax Convention [20] : If the individual has a permanent home in both Contracting States, paragraph 2 gives preference to the State with which the personal and economic relations of the individual are closer, this being understood as the centre of vital interests... [21] It is necessary to look at the facts in order to ascertain with which of the two States his personal and economic relations are closer. Thus, regard will be had to his family and social relations, his occupations, his political, cultural or other activities, his place of business, the place from which he administers his property, etc. The circumstances must be examined as a whole, but it is nevertheless obvious that considerations based on the personal acts of the individual must receive special attention. If a person who has a home in one State sets up a second in the other State while retaining the first, the fact that he retains the first in the environment where he has always lived, where he has worked, and where he has his family and possessions, can, together with other elements, go to demonstrate that he has retained his centre of vital interests in the first State. [22] Similarly, Vogel 2016 states the following in relation to what is meant by "personal and economic relations" in Article 4(2) of the OECD Model Tax Convention (footnotes omitted) [23] : 92 (1) Personal and Economic Relations . As already mentioned, many factors from the taxpayer's private and economic sphere are relevant to determine his personal and economic relations. In practice, the courts have, inter alia, based their decisions on an evaluation of facts surrounding the following non-exhaustive list of facts: house; family home; furnishings; rented apartment; owned apartment; passport; sharing a room, no rent, no lease; place where the taxpayer was born and raised; children; country of birth of children; spouse; country of divorce; where spouse seeks employment; family visits; other family members such as parents; partner; friends; acquaintances; memberships; language skills; work; employer; adaption of professional qualifications such as nursing license; temporal dislocation; no relations apart from day-to-day living expenses (renting on yearly basis, bank account only for needs abroad, no car), relocation support, normally granted when an employee has temporarily moved to work in another country than that in which he had his residence; bank accounts; brokerage account; credit card; money transfers; health insurance; driver's license; personal belongings, such as a car, purchase new home; registration of car; future retirement plans; retirement accounts. 93...the criteria of personal relations and, to a lesser degree, economic relations are highly subjective. What constitutes personal relations and how much weight is to be attached to such factors is very much in the eyes of the beholder... 94 In our view, all this suggests that the circumstances should be restricted to actual vital interests (contained in the term 'centre of vital interests')...Vital interests are circumstances in the everyday life of an individual that not only reflect his day-to-day needs but also - in addition - longer-lasting ties. Whereas day-today needs and habits can be shifted quickly and selected by the taxpayer at will, vital interests are characterised by a certain permanence and this cannot be of a sheer temporal nature. In your case, you have been found a resident of Australia for taxation purposes. You are also a resident of Country A for taxation purposes. In order to prevent double taxation, the application of the Double Tax Agreement between Australia and Country A (the contracting states) is required to ascertain taxing rights between the two countries. It has been identified that you have a permanent home in both the contracting states. Analysis of personal and economic factors is therefore required. · You, your spouse and children were all born in Country A · You hold citizenship in both the contracting states · Your immediate family have relocated to Australia with you for a period of what is expected to be between two and three years · Your extended family remains in Country A · You own property in both the contracting states · You are connected to companies and trusts in both the contracting states · You hold approximately XX% of your wealth in Country A and X% in Australia · You will continue to manage Country A business interests whilst based in Australia · You are unable to manage the 20XX development project from Country A · You have not severed your social ties in Country A, and · Your children will be attending Australian based education whilst in Australia. Based on the above facts, your wealth, business interests, social and extended family ties show continued permanence and longer lasting ties to Country A for the purposes of the double tax agreement between Country A and Australia. You are a tax resident of Country A under the tiebreaker test. [1] Macquarie Dictionary, 2001, rev. 3 rd edition , The Macquarie Library Pty Ltd NSW; see paragraph 14 Taxation Ruling TR 98/17 Income tax: residency status of individuals entering Australia. [2] Commissioner of Taxation v Miller [1946] HCA 23 per Latham CJ at [99]. [3] Levene v Inland Revenue Commissioners [1928] AC 217 at 223; Inland Revenue Commissioners v Lysaght [1928] AC 234 at 245; Gregory v The Deputy Federal Commissioner of Taxation (WA) (1937) 57 CLR 774 at 777-778. [4] The Commissioner of Taxation v Miller [1946] HCA 23 per Latham CJ at 99. [5] Cooper v Cadwalader (1903-1911) 5 TC 101; Inland Revenue Commissioners v Lysaght [1928] AC 234 at 248. [6] Hafza v Director-General of Social Security (1985) 6 FCR 444 at 449, Wilcox J and the reference there to Levene v Commissioners of Inland Revenue [1928] AC 217 at 225. [7] Stockton v Federal Commissioner of Taxation [2019] FCA 1679. [8] Joachim v Federal Commissioner of Taxation 2002 ATC 2088. [9] Iyengar at [66]. [10] Gregory v The Deputy Federal Commissioner of Taxation [1937] HCA 57. [11] Iyengar at [74] citing Commissioner of Inland Revenue v Lysaght [1928] AC 234. [12] Landy v Federal Commissioner of Taxation [2016] ATC 10-435 . [13] Gregory v The Deputy Federal Commissioner of Taxation [1937] HCA 57 [14] See paragraph 52 of the TR 98/17 [15] See paragraph 52 of TR 98/17 [16] See paragraph 42, 44 and 45 of TR 98/17 [17] See paragraph 55 of TR 98/17 [18] See paragraph 57 and 59 of TR 98/17 [19] Oxford Dictionary [20] Tan v Federal Commissioner of Taxation [2016] AATA 1062 Paragraph 61 [21] Tan v Federal Commissioner of Taxation [2016] AATA 1062 Paragraph 14 [22] Tan v Federal Commissioner of Taxation [2016] AATA 1062 Paragraph 15 [23] Tan v Federal Commissioner of Taxation [2016] Paragraph 62