Addy v Commissioner of Taxation

[2019] FCA 1768

---

• The impact of this case on ATO policy is discussed in Decision Impact Statement: Addy v Commissioner of Taxation (Published 31 March 2022).

Addy
v Commissioner of Taxation

Court:

Judge: Logan J

Legislative References:
Federal Court of Australia Act 1976 (Cth) - 37M
Income Tax Act 1986 (Cth) - 5
Income Tax Assessment Act 1936 (Cth) - 6; 175A
Income Tax Assessment Act 1997 (Cth) - Subdiv 768-R
Income Tax Rates Act 1986 (Cth) - 3A; 18
International Tax Agreements Act 1953 (Cth) - 3; 3AAA; 4; 5
Migration Act 1958 (Cth) - 29
Taxation Administration Act 1953 (Cth) - 14ZV; 14ZVC; 14ZZO
Taxation Boards of Review (Transfer of Jurisdiction) Act 1986 (Cth) - The Act

Case References:
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue - (2009) 239 CLR 27
Aon Risk Services Australia Ltd v Australian National University - (2009) 239 CLR 175
Bosanac v Commissioner of Taxation - [2019] FCAFC 116
Bundesfinanzhof (Federal Fiscal Court) - IR 20/87, 14 March 1989, Bundessteuerblatt, 1989, 14, II, 649
Carr v Western Australia - (2007) 232 CLR 138
Commissioner of Inland Revenue v United Dominions Trust - [1973] 2 NZLR 555
Commissioner of Taxation v Harding - [2019] HCA Trans 191
Commissioner of Taxation v Miller - (1946) 73 CLR 93
Cour Administrative d'Appel Marseille (Administrative Court of Appeal Marseille) - 98MA01682, 8 February 2000
Gregory v Deputy Federal Commissioner of Taxation - (1937) 57 CLR 774
Hafza v Director-General of Social Security - (1985) 6 FCR 444
Harding v Commissioner of Taxation - (2019) 365 ALR 286
Levene v Commissioners of Inland Revenue - [1928] AC 217
Lighthouse Philatelics Pty Ltd v Commissioner of Taxation - (1991) 32 FCR 148
McDermott Industries (Aust) Pty Ltd v Commissioner of Taxation - (2005) 142 FCR 134
R v Inland Revenue Commissioners, ex parte Commerzbank A G - [1994] QB 219
Re Dempsey and Federal Commissioner of Taxation - (2014) 98 ATR 698
Stockton v Commissioner of Taxation - [2019] FCA 1679
Territorial Dispute (Libyan Arab Jamahiriya v Chad) (Judgment) - [1994] ICJ Rep 6
Thiel v Commissioner of Taxation - (1990) 171 CLR 338
Zappia v Commissioner of Taxation - (2017) 106 ATR 875

Hearing date: 3 and 4 December 2018
Judgment date: 30 October 2019

Queensland
QUD 108 of 2018

---

ORDERS

The Court orders that:

1.

The leave provisionally granted to the applicant on 3 December 2018 to amend her grounds of objection in accordance with those specified in the document which became Exhibit 2 be confirmed.

2.

The appeal be allowed.

3.

The respondent's objection decision dated 26 February 2018 in respect of his amended assessment of the applicant dated 20 December 2017 for the income year ended 30 June 2017 be set aside.

4.

In lieu thereof, it be ordered that the applicant's objection to that amended assessment be allowed.

5.

The matter be remitted to the respondent for the making of an amended assessment in accordance with the Court's reasons for judgement and on the footing that, until 1 May 2017, the applicant was a "resident" as defined by s 6(1) of the Income Tax Assessment Act 1936 (Cth) and that the rates of tax specified in Part III of Schedule 7 to the Income Tax Rates Act 1986 (Cth) did not apply to her income from 1 January 2017.

6.

Liberty to apply for further directions in respect of the basis upon which the amended assessment is to be made.

7.

No order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.