The ghosts of Levene and Lysaght still haunting 90 years on: Australia's 'great age' of residence litigation?
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Open Access
Type
ArticleAuthor/s
Dirkis, MichaelAbstract
Between 2010 and 2016 there were 34 cases litigated in Australia relating to the residence status of individual taxpayers compared with only 25 cases in the prior 79 years. This article: (1) after briefly setting out Australia's statutory residence rules in the context of their ...
See moreBetween 2010 and 2016 there were 34 cases litigated in Australia relating to the residence status of individual taxpayers compared with only 25 cases in the prior 79 years. This article: (1) after briefly setting out Australia's statutory residence rules in the context of their history, underlying policy and origins; and (2) highlighting the continuing impact of UK decisions, such as Levene and Lysaght have upon Australian law through four key observations explores the impact, if any, that this litigation has had upon the understanding of the concept of "residence" in the Australian context. The article concludes that this large volume of recent litigation was in many cases unnecessary as it has merely reinforced the scope of the existing rules. Further, the fact that there were a large number of cases does not of itself provide any rational impetus for major reform. As such, the ghosts of the common law residency test may continue to haunt Australian law for another 80 years.
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See moreBetween 2010 and 2016 there were 34 cases litigated in Australia relating to the residence status of individual taxpayers compared with only 25 cases in the prior 79 years. This article: (1) after briefly setting out Australia's statutory residence rules in the context of their history, underlying policy and origins; and (2) highlighting the continuing impact of UK decisions, such as Levene and Lysaght have upon Australian law through four key observations explores the impact, if any, that this litigation has had upon the understanding of the concept of "residence" in the Australian context. The article concludes that this large volume of recent litigation was in many cases unnecessary as it has merely reinforced the scope of the existing rules. Further, the fact that there were a large number of cases does not of itself provide any rational impetus for major reform. As such, the ghosts of the common law residency test may continue to haunt Australian law for another 80 years.
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Date
2018Source title
Australian Tax ReviewVolume
47Issue
1Publisher
Thomson RetuersLicence
Copyright All Rights ReservedRights statement
This article was published by Thomson Reuters and should be cited as: Dirkis, M. (2018). The ghosts of Levene and Lysaght still haunting 90 years on: Australia’s "great age" of residence litigation? Australian Tax Review, 47(1), 41–53. For all subscription inquiries please phone, from Australia: 1300 304 195, from Overseas: +61 2 8587 7980 or online at legal.thomsonreuters.com.au/search. The official PDF version of this article can also be purchased separately from Thomson Reuters at http://sites.thomsonreuters.com.au/journals/subscribe-or-purchase. This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968 (Cth), no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Enquiries should be addressed to Thomson Reuters (Professional) Australia Limited. PO Box 3502, Rozelle NSW 2039. legal.thomsonreuters.com.auFaculty/School
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