The ghosts of Levene and Lysaght still haunting 90 years on: Australia's 'great age' of residence litigation?

Abstract

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 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.