Answer To: Semester 2, 2019 Taxation Case Study – 20% Case Facts: Mr Mark Lewis is employed on a luxury cruise...
Jyoti answered on Sep 27 2021
Taxation Advice for Mr. Mark Lewis
1. Introduction
(a) Residency
Mr. Mark Lewis is working on a luxury cruise liner under an employment contract signed in Hong Kong with a company based in Cook Islands. The luxury cruise liner is, however, owned by Bermudian company. He earns a salary income of AUD $ 1, 50,000 after deductions.
Mr. Mark gave 75% portion of farm house owned by him on lease to a couple and kept with himself, 25% of said property, a converted shed where he stays when he is in Australia. After retirement, Mr.Mark intends to live permanently in the converted shed and will still rent out the farmhouse. In this year, he spent 80 days in Australia and 40 days in Canada where his wife and children lives after divorce, while the remaining days were spent on cruise.
Is Mr. Mark, a resident of Australia under Income tax law?
(b) Source
Mr. Mark Lewis earned salary and wages from a Cruise Company based in Cook Islands. Also, he is into cattle breeding and has earned profit before tax of $ 50,000.Will both these incomes be taxable in Australia on source based taxation?
(c) Exemptions
All incomes are included in assessable income subject to exemptions provided in the Act. Will he salary income earned by Mr. Mark from working on luxury cruise liner which visits many locations around the Mediterranean sea will be exempted and therefore, not includible in assessable income?
(d) Business
For retirement, Mr. Mark took up cattle breeding and owns 100 cows which live in external farm for a consideration. These cows are being fattened and half of them will be sold on achieving required weight and remaining will be used for further breeding. In last 3 years, he made tax loss but, earned profit of $ 50,000 this year. Will it be taxed and if yes, how?
2. Main body
(a) Residence
In order to understand taxability of income in any country on residence based taxation, identification of status of residency of any individual is necessary. To ascertain whether a person is a resident of Australia or not, there are ordinarily resident test, domicile test, stay in Australia for a period exceeding 183 days test or member of superannuation scheme test specified in section 6-1 of ITAA, 1936.
Tax Ruling, TR 98/17 specify guidelines for determining residential status. It provides various factors affecting residency viz., presence and intention, owning and situation of assets, family life and living arrangements, business, and physical presence. Further, in the case of (Joachim v. FCT [2002] 50 ATR 1072), it was observed that merely because a person is physically absent from his/her established home at a particular place, it does not mean he/she cease to reside there, if he or she maintains a continuous association with the place.
In our case, Mr. Mark Lewis has accepted an assignment with a foreign based company for working on cruise liner. After separation, Mark’s wife along with her two kids’ lives separately in Canada. However, Mr. Mark has ongoing ties with Australia as he still owns a farm house in Australia, part of which is given on rent. During visits to Australia, Mr. Mark stays in his farm house only. He has also taken up cattle breeding as a business and intends to return to Australia after retirement.
During this year, Mr. Mark remained in Australia for 80 days and thus, does not fulfil criteria of living in Australia for more than 183 days. He is also not a member of superannuation scheme. But, he owns a farm house in Australia and has also been involved in business of cattle breeding in Australia. His intention to live in Australia after retirement shows that he has maintained an association with his home in Australia with the intention to return to Australia permanently. Also, there is no sign that he has any permanent residence outside Australia...