You are an Australian Tax Advisor. A new client, X, comes to see you for Australian tax advice about her husband Y who was in his late 40s and died in May 2020. She is asking you to advise her and the other executor of Y’s Will. You should assume that X has always had an Australian domicile. She married Y in 2000. Y had a Zimbabwe domicile of origin. He had to leave in his 20s in the mid-1990s and was granted political refugee status in Australia then. He always told X (at least until his departure from Australia in 2017) that he wanted to return and live in Zimbabwe if there was a regime change. Throughout his time in Australia, he claimed foreign domiciled status.

In the event, Y remained in Australia for over 17 years before he left to live in Paris on the 1^st of March 2017. By this time X and Y although remained married and on reasonable terms, did not leave Australia with him but remained in the family home. X tells you that she has remained an Australian resident and has stayed in the family home throughout. They have three children, one of whom is still a minor. All the children are an Australian resident and the two eldest went to an Australian University and now have jobs in Australia.

In 2017/18, 2018/19 and 2019/20 tax years Y spent more than 89 midnights in Australia and X tells you that he self-assessed as not an Australian resident throughout that period. Prior to March 2017, he continued to stay in the family home on visits to Australia each tax year thereafter. He did not work in Australia, having retired in 2016. His youngest child is in boarding schooL and Y did not see that child for more than 40 days per tax year when he was in Australia. Y spent at least 140 days in Paris each tax year in his nice well appointed rented apartment.

At the time of his death, X tells you that Y has decided not to go back to Zimbabwe and had intended to settle permanently in Paris. She says they were informally separated although they continued to share the Australian home when he was over for visits.

Is X correct that Y was non Australian Resident from 2017/18 onwards? Do you think there is a difference in his Australian tax residence status in 2017/18 and 2018/19 compared with what is his residence status in the year of his death in 2020/21? Refer to the various ties in your answer. What further information would be helpful to have?

Answer rating: 100% (QA)

Is X correct that Y was a nonAustralian Resident from 201718 onwards Yes X is correct that Y was a nonAustralian resident from 201718 onwards This is because he was living in Paris and only visiting A... View the full answer