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Residence tests for individuals: Impact of the Harding decision

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Published on 01 Dec 19 by "TAXATION IN AUSTRALIA" JOURNAL ARTICLE

The High Court has refused the ATO special leave to appeal from the Full Federal Court decision in FCT v Harding. This case has particular importance for individual taxpayers attempting to determine whether they are Australian residents or non-residents for income tax purposes. The two tests directly affected by the Harding case are the domicile test and the 183-day test as per s 6(1) of the Income Tax Assessment Act 1936. This article analyses the Full Federal Court decision in Harding and provides an insight as to how the two tests should be applied according to law. In so doing, the article dissects IT 2650 and TR 98/17, and suggestions are made that those rulings need to be withdrawn or substantially revised.

Author profiles

Michael Blissenden
Michael is Associate Professor of Law at the University of Western Sydney. - Current at 01 February 2015
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Sylvia Villios CTA
Dr Sylvia Villios, CTA, is an Associate Professor at the Adelaide Law School, University of Adelaide. She researches and teaches in taxation law, particularly focusing on questions about the operation of the Australian tax system, taxation policy, corporate taxation and the role, powers and accountability of the Commissioner of Taxation. Outside of her primary research area, she has published extensively on the role and operation of Australia's succession laws. Dr Villios is the Associate Dean of Graduate Studies for the Faculty of Arts, Business, Law and Economics. She is a co-director of the Regulation of Commercial, Corporations, Insolvency and Taxation (ROCCIT) research unit which is based at the University of Adelaide. She is an editorial panel member of the Australian Tax Law Bulletin, Lexis Nexis. During her academic career she has published over 40 peer-reviewed journal articles. She has a strong industry presence and her background in taxation and commercial law extends beyond academia and includes experience in legal practice - Current at 03 November 2025
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Dr Paul Kenny
Paul is Associate Professor in Taxation Law, Flinders Business School, Flinders University, South Australia. - Current at 30 September 2015
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