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FC of T v Pike

Judges:
Davies J
White J
Steward J

Court:
Federal Court of Australia, Full Court

MEDIA NEUTRAL CITATION: [2020] FCAFC 158

Judgment date: 22 September 2020

Davies, White and Steward JJ

INTRODUCTION

1. The respondent/cross-appellant ( Mr Pike ) was assessed to income tax by the appellant/cross-respondent ( the Commissioner ) for the income years ended 30 June 2009 to 30 June 2016 on the basis that he was a resident of Australia for tax purposes in those income years. The primary judge found that Mr Pike was a "resident" of Australia in those income years within ordinary concepts. The primary judge also found that Mr Pike satisfied the "domicile" test of residency in sub-para (a)(i) of the definition of "resident" or "resident of Australia" in s 6(1) of the Income Tax Assessment Act 1936 (Cth) ( the 1936 Act ) as from April 2014. The conclusion that Mr Pike was a resident gave rise to the application of Art 4(3) of the Agreement between Australia and the Kingdom of Thailand for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income, signed 31 August 1989,
[1989] ATS 36 (entered into force 27 December 1989) ( Double Tax Agreement ) because, during the 2009 to 2014 income years, Mr Pike was also a resident of Thailand under the law of Thailand. Article 4(3) contains the "tiebreaker" provisions, which apply where a taxpayer is a resident of both contracting states. Applying those tiebreaker provisions, the primary judge concluded that Mr Pike had an "habitual abode" in both Thailand and Australia for the purposes of Art 4(3)(b) (the "habitual abode" test) but Art 4(3)(c) (the "personal and economic relations" test) applied to deem Mr Pike to be a resident solely of Thailand.

2. By this appeal, the Commissioner has appealed the findings of the primary judge that:

  • (a) the Double Tax Agreement deemed Mr Pike to be a resident solely of Thailand for the 2009 to 2014 income years; and
  • (b) Mr Pike did not satisfy the domicile test until April 2014.

3. Mr Pike has cross-appealed the findings that:

  • (a) he was a resident of Australia in the income years in question pursuant to the ordinary concepts test;
  • (b) he was a resident of Australia pursuant to the domicile test from April 2014; and
  • (c) Art 4(3)(b) of the Double Tax Agreement did not deem him to be a resident solely of Thailand during the 2009 to 2014 income years.

THE FACTS

4. The facts as found by the primary judge were not disputed by either party. Those facts are found at [4]-[44] of the judgment below and were as follows:

  • (a) Mr Pike was born in 1972 in what was then the British colony of Southern Rhodesia and later became the Republic of Zimbabwe: [4];
  • (b) in Zimbabwe, Mr Pike developed a career in the tobacco industry. By 2004 he had become highly experienced in tobacco selection, production and sales: [5];
  • (c) Mr Pike was then, and continues to be, in a long standing de facto relationship with Ms Michelle Thornicroft. She was also born in Southern Rhodesia in 1971 and they have two sons, each born in Zimbabwe in 1995 and 1999 respectively: [5];

    ATC 23551

  • (d) by 2004, the economic crisis and shortages of food and basic supplies in Zimbabwe caused Mr Pike and Ms Thornicroft to decide to leave that country with their children. To that end, Ms Thornicroft sought, was offered, and accepted an appointment in Ernst & Young's Brisbane office: [5];
  • (e) that appointment was due to commence on 4 April 2005. Mr Pike was then employed in Harare under a contract with the tobacco industry company, Alliance One. Prompted by the decision to relocate to Australia, Mr Pike negotiated an arrangement with Alliance One, under the terms of which he would receive a payment after serving out the term of his existing contract: [6];
  • (f) in February 2005, Ms Thornicroft was granted a subclass 457 visa and Mr Pike and their sons were also granted visas allowing them to accompany Ms Thornicroft to live in Australia during the currency of her subclass 457 visa: [7];
  • (g) on 17 March 2005 the family travelled to Australia: [8];
  • (h) from 2000 until they left for Australia, Mr Pike, Ms Thornicroft and their sons lived in a home in Harare which they had purchased from Ms Thornicroft's mother ( Harare home ): [8];
  • (i) upon their arrival in Australia, Mr Pike and Ms Thornicroft leased an apartment in Fortitude Valley, Brisbane. The lease was taken out in joint names: [9];
  • (j) Mr Pike returned to Zimbabwe shortly after the family's arrival in Australia to serve out his contract with Alliance One, to sell some assets (two cars and a boat but not the Harare home) that the couple owned in that country and to pack up and arrange the transportation to Australia of their furniture. He returned to Australia in September 2005: [9];
  • (k) on his return to Australia Mr Pike sought employment, but the period during which he and Ms Thornicroft transitioned from Zimbabwe to Australia coincided with the winding up of the tobacco growing industry in Australia and Mr Pike found he was unable to find suitable employment in Australia. In light of this, he sought to enrol in tertiary level studies in business so as to reskill for alternative employment, but the enrolment requirements were such that he could not readily pursue this course of action. That led him to fall back on his existing skill and experience and international tobacco industry contacts which he had developed during his time in Zimbabwe. By this means, Mr Pike became aware in March 2006 of the availability of work in Thailand, where a tobacco industry was being established: [11];
  • (l) that month Mr Pike travelled to Thailand and in late 2006 he was offered and took up a position based in Thailand as a tobacco and leaf consultant with Premium Tobacco (Asia) Limited. His initial contract for this work was for six months. However, in June 2006, he entered into a further contract with Premium Tobacco (Asia) Limited as a sales manager. This position was for an indefinite duration. His duties required that he be based in Thailand but also that he undertake duties elsewhere in Asia as required: [12];
  • (m) Mr Pike was granted a work visa by the Thai government which allowed him to live and work in Thailand. He opened a bank account in Thailand and his salary was paid into that account: [13];
  • (n) over the next eight years Mr Pike continued to be based in Thailand for employment purposes, travelling elsewhere in the Asian region as required. He was granted successive Thai work visas, each keyed, in terms of a right to live and work in Thailand, to ongoing employment in that country. Though he intended to, and did, return to his family in Australia, circumstance required that he spend most of his time working and living in Thailand: [14];
  • (o) between 2006 and 2014 Mr Pike occupied a succession of rented apartments or cottage accommodation in Thailand, which he furnished to his taste and also to accommodate Ms Thornicroft and their two sons when they visited it. He regarded that

    ATC 23552

    accommodation as his home when in Thailand. During his time in Thailand, Mr Pike joined and actively patronised golf, rugby and cricket clubs and also formed enduring friendships. He used his Zimbabwean driver's licence for the purpose of securing permission to drive in Thailand and was allocated a company car for work and private use: [15];
  • (p) also over this period and in succession to the apartment at Fortitude Valley, Mr Pike and Ms Thornicroft jointly rented a home in Taringa, Brisbane, and then later a four bedroom home at Seventeen Mile Rocks. Ms Thornicroft, their sons and, when in Australia, Mr Pike, always occupied these premises as a family. The successive Brisbane residential relocations were the result of joint discussion and decision making by Mr Pike and Ms Thornicroft. The properties they rented were unfurnished and they jointly purchased furniture and household appliances as required for these properties. They also jointly purchased motor vehicles for their use in Australia: [16];
  • (q) Ms Thornicroft's mother moved to Australia from Zimbabwe in 2012 and joined them in these rented premises: [17];
  • (r) during the whole of his time in Thailand Mr Pike lodged taxation returns with Thailand's Revenue Department. He did not lodge income tax returns in Australia, save for the 2014 income year: [18];
  • (s) in September 2006, when Mr Pike's family initially visited him in Thailand, Mr Pike and Ms Thornicroft discussed moving the family there, but Ms Thornicroft was not agreeable to this proposal: [19];
  • (t) in 2010 Ms Thornicroft sustained a wrist injury and took extended leave from Ernst & Young. In 2011, after the leave had come to an end, she relinquished her position: [20];
  • (u) both before and after Ms Thornicroft's injury and to this day, Mr Pike has supported her and their sons by regular financial contributions. Mr Pike established an Australian bank account in his own name when the family first moved to Australia and, shortly after that, a joint Australian bank account with Ms Thornicroft. He also obtained a credit card with an Australian bank: [21];
  • (v) as well as supporting his immediate family financially, Mr Pike continued to support his father, his mother and his two brothers financially, all of whom remained living in Zimbabwe: [22];
  • (w) on 16 February 2009 Ms Thornicroft, Mr Pike and their sons were granted permanent residency in Australia. Mr Pike's permanent residency visa included a return travel facility that allowed travel in and out of Australia for a period of five years. That limitation caused a problem for Mr Pike in 2014 when he sought to return to the family home and had to obtain a further Australian visa at short notice, as he had not by then completed all requirements for the conferral of Australian citizenship: [23];
  • (x) in September 2010 Mr Pike and Ms Thornicroft purchased vacant land at Brookwater, a residential golf community in Ipswich, Queensland. Their intention was to build a family home and also to provide something tangible in Australia for their sons. They sold the Harare home in October 2010 and used the proceeds of sale to reduce the borrowings taken out to acquire the Brookwater land. As it later transpired, it was not possible for them to build a home on the land and it was sold in November 2013: [24];
  • (y) in August 2010 Ms Thornicroft and the couple's two sons were granted Australian citizenship. The primary judge at [25] stated that Ms Thornicroft and Mr Pike "had aspired to this eventuality for themselves and their sons ever since relocating to Australia in 2005";
  • (z) later in 2010 Mr Pike made enquiries in Brisbane with the Department of Immigration and Citizenship (as it then was) about obtaining Australian citizenship. Up until then he had been using his Zimbabwean passport for international travel purposes, but increasingly found that

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    his use of that passport occasioned him particular scrutiny at international borders. However, he did not pursue a citizenship application until April 2013: [26];
  • (aa) Mr Pike's Zimbabwean passport was renewed on 15 September 2010 and again on 6 December 2012, the latter current for 10 years: [27];
  • (bb) Mr Pike made an application for Australian citizenship in April 2013 and gave as his residential address the then rented family home at Taringa. He also specified as his home telephone number the landline (inferentially) connected to those premises. In contrast, his mobile telephone number was his Thai number and the contact email address he specified was his Thai work email address. He specified his then current citizenship as Zimbabwean. He also stated on the application that he intended to be absent from Australia for work for six weeks over the forthcoming 12 months: [28];
  • (cc) Ms Thornicroft provided a letter in support of Mr Pike's citizenship application. In this, apart from attesting to the length of their de facto relationship and their children, she stated:

    We moved from Zimbabwe to Australia in March 2005 and in 2006 was offered a position offshore in Thailand. He currently remains employed by Premium Tobacco as the Sales Manager for Thailand and China based out of Chiangmai Thailand. Bradley is now the primary bread winner in the family and needs to spend time abroad to fulfill his work responsibilities. I and our children became Australian citizens on 27 August 2010. Bradley has been a permanent resident since 16 February 2009. Prior to that, Bradley entered Australia on 17 March 2005 on the 457 visa as a result of my employment with Ernst and Young Brisbane. Australia and more so Brisbane is our family home. Bradley returns home regularly and is truly invested in our lives here. Further, we jointly own land in Springfield on which we planned to build a home.

    [sic]

    The reference in this letter to the land at Springfield is a reference to the Brookwater land: [29]-[30];

  • (dd) Mr Pike's citizenship application was refused in 2013 on the basis of a decision by a ministerial delegate that he did not satisfy particular residential requirements specified in the Australian Citizenship Act 2007 (Cth): [34];
  • (ee) Mr Pike lodged a further application for Australian citizenship in October 2013 and on that occasion he was successful and was issued with an Australian passport in 2014. He also enrolled on the electoral roll for the electorate in which the Seventeen Mile Rocks home was located and remained, at the time of the hearing before the primary judge, so enrolled, although at that time he had only voted once (in 2016) in an election in Australia: [35];
  • (ff) in 2014 Mr Pike relocated to Tanzania for employment purposes. Mr Pike closed his Thai bank account and opened one in Tanzania on relocating there. His ability to live and work in Tanzania was conditioned by his visa to his ongoing employment in that country: [36];
  • (gg) Mr Pike lived in fully furnished rented accommodation for the duration of his time in Tanzania and joined golf and tennis clubs there. The primary judge stated at [37]: "[a]s with Thailand, he made a home there";
  • (hh) in early 2016 Mr Pike was offered a promotion to a position based in Dubai in the United Arab Emirates ( UAE ) and took up this offer. His employment agreement was stated to be an "Unlimited Period Employment Contract". He gave as his address that of the rented home at Seventeen Mile Rocks, Brisbane. His UAE visa was keyed to the continuance of his employment there. His UAE driver's licence and other UAE identification documentation specified his nationality as Australian. At the time of the hearing before the primary judge, Mr Pike remained employed in Dubai: [38];
  • (ii) in February 2016 Mr Pike entered into a tenancy contract in relation to an unfurnished apartment in Dubai. The initial duration of the tenancy was one year but it

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    was later extended. He furnished the apartment to his taste and to provide for visits from his family. He also purchased a vehicle in Dubai and opened bank and credit card accounts there. At the time of the hearing before the primary judge, Mr Pike remained employed in Dubai, living in his rented accommodation whenever in the UAE. The primary judge stated at [39] "[y]et again, he has made a home there";
  • (jj) Ms Thornicroft chose not to relocate to Tanzania when Mr Pike was employed there: [40];
  • (kk) the number of days that Mr Pike spent in Australia in particular income years and the related percentage of each of those years were set out in the primary judgment at [42] as follows:
    Income year Days spent in Australia Percentage of time spent in Australia
    2008 76 20%
    2009 155 42%
    2010 97 27%
    2011 109 30%
    2012 102 28%
    2013 86 23%
    2014 123 33%
    2015 32 8%
    2016 44 12%
    2017 77 21%
  • (ll) when returning to Australia, Mr Pike always returned to the home where Ms Thornicroft and their sons were for the time being located and always regarded this as the family home. Over the years, his returns to Australia coincided with family occasions such as birthdays, Christmas and school prize giving and have also been occasioned by family emergencies. The related number of departures which he has made from Australia to return to where he worked abroad were set out in the primary judgment at [43] as follows:
    Income Year Number of departures
    2009 5
    2010 6
    2011 6
    2012 4
    2013 4
    2014 5
    2015 4
    2016 4
  • (mm) the agreed bundle of documents in the Court below contained a collection of Australian incoming and outgoing passenger cards completed by Mr Pike, dating back to 14 July 2008. In the main, in respect of incoming passenger cards, Mr Pike has chosen the "Resident Returning to Australia" section while at the same time answering "No" to the question "Do you intend to live in Australia for the next 12 months?". Only after the Commissioner sent an inquiry to Mr Pike's tax agent as to his tax residential status in February 2017 has Mr Pike completed an incoming passenger card in which he stated that he was a visitor or temporary entrant to Australia. On his outgoing passenger cards, Mr Pike has chosen the "Australian resident departing temporarily" section: [44].

5. On 15 June 2017 the Commissioner issued notices of assessment to Mr Pike for the income years for 2009, 2010, 2011, 2012, 2013, 2015 and 2016 on the basis of residency in Australia. That same day, the Commissioner issued a notice of amended assessment in respect of the 2014 income year: [45]-[46] of the primary judgment.

TESTS FOR RESIDENCY

6. Section 6(1) of the 1936 Act relevantly defines a "resident" or "resident of Australia" to mean:

  • (a) a person, other than a company, who resides in Australia and includes a person:
    • (i) whose domicile is in Australia, unless the Commissioner is satisfied that the person's permanent place of abode is outside

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      Australia;
    • (ii) who has actually been in Australia, continuously or intermittently, during more than one-half of the year of income, unless the Commissioner is satisfied that the person's usual place of abode is outside Australia and that the person does not intend to take up residence in Australia;

      …

7. The definition contains three tests of residency: the " ordinary concepts test " (derived from the phrase "who resides in Australia"), the " domicile test " (derived from sub-para (a)(i)), and the " 183 day test " (derived from sub-para (a)(ii)):
Commissioner of Taxation v Addy [2020] FCAFC 135 ( Addy ) at [72] per Derrington J. The 183 day test is not relevant to the issues raised by the appeal and cross-appeal.

WAS THE PRIMARY JUDGE CORRECT TO FIND THAT MR PIKE WAS A RESIDENT UNDER ORDINARY CONCEPTS?

8. It is logical to commence with the determination of this issue which was raised by grounds 1 and 2 of the cross-appeal.

9. Mr Pike accepted that the primary judge identified the correct test for establishing residency according to ordinary concepts. Those principles were recently very helpfully set out by Derrington J (with whom Davies and Steward JJ agreed on this issue) in Addy at [73]-[77]. They need not be repeated.

10. However, Mr Pike contended that the primary judge erred in holding at [77] that he was a resident of Australia according to the ordinary meaning of "resident" in each of the relevant years. At [77], the primary judge stated:

In my view, the evidence discloses that Mr Pike contemplated cutting but did not fully cut his ties with Zimbabwe in 2010. That was when he and Ms Thornicroft sold the Harare home and bought the Brookwater land, intending to build a home on it, when she and their sons acquired Australian citizenship and when he made inquiries about Australian citizenship. But as late as 2012 Mr Pike renewed his Zimbabwean passport. He had also used his Zimbabwean driver's licence in Thailand. In relation both to Thailand and Tanzania (and now the UAE), he contemplated, in discussion with Ms Thornicroft, her joining him to live there. In terms of physical presence in Australia, as the table above discloses, it has been as short as 32 days in one year and yet as long as 155 days in another. There was both genuine commitment but also an element of expediency in Mr Pike's acquisition of Australian citizenship in 2014. Truly, there are mixed signals, in terms of the acquisition of a domicile of choice, sent by Mr Pike's conduct since his arrival in Australia in 2005. Yet there is a consistent pattern of his returning to live in Australia in what he so very clearly regards as his family home, year after year, on and from his first departure for Thailand in 2006.

11. It was submitted that the error arose from the primary judge's "erroneous" finding at [60] that when Mr Pike returned to Australia he was not returning as a visitor to Australia. At [60], the primary judge said:

When Mr Pike returned to Australia he was not, as his submissions invited me to conclude, a resident of Thailand, Tanzania or, as the case may be, Dubai in the UAE, returning as a visitor to Australia. Rather, he returned as husband (de facto) and father to resume living - residing - with his wife and children at the family home. It was not just their family home; it was his also.

(emphasis in original)

12. Paragraph [60] must be read with paragraphs [61]-[66] as follows:

The combined exigencies of Mr Pike's existing skill and experience and the absence of relevant work in Australia meant that the earning potential of that skill and experience could only be realised by living and working abroad. On the evidence, Mr Pike is obviously well regarded in the corporate group within which he has found employment ever since 2006. The irony of this is that, the more that his tobacco industry talent has manifested itself and his career correspondingly progressed, the more enduring has been the compulsion to live and to work abroad. But no less enduring and, as a matter of personal character, no less compelling for him, has

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been his devotion to his family. The evidence discloses that, over the relevant years, there is a pattern or habit on Mr Pike's part of living and working abroad and also of returning here to live with his family as often and for as long as possible.

In the overall circumstances of this case, that Mr Pike has always occupied rented accommodation abroad is no more relevant than that he and his family have always occupied rented accommodation in Australia. Occupancy of rented accommodation is not inconsistent with a conclusion that a person is settled in a particular place. Mr Pike's occupancy of rented accommodation, like his employment aboard, was terminable at relatively short notice in theory but the reality on the evidence was that it was indefinitely continuing. In Thailand, Tanzania and now in Dubai in the UAE, Mr Pike made and continues to make what, from the desirable perspective of continuous family life together, is the best of a difficult lot. He has undoubtedly made a home in these places, developing not just working but also sporting and social ties there. He has settled there. They were each, in the geographic sense, his places of abode. This is true even of Tanzania, as he had no idea when he took up a transfer there that his time in the country would prove to be relatively short. The reality on the whole of the evidence is that Mr Pike has led and continues to lead two lives, a working life abroad with an attendant social life and a family life in Australia. The two lives are inter-connected not just by the financial support that Mr Pike provides from the fruits of his working life but also by enduring ties of love and affection for his wife and sons and physical presence when possible. Ms Thornicroft's evidence offered eloquent support for the existence and continuance of such ties. Australia has also been, and continues to be, in the geographic sense, Mr Pike's place of abode. He has settled here, too. Mr Pike has also resided here over the relevant period.

While Mr Pike has settled in Australia as well as in each location abroad where he has been employed, his Australian settlement has not been unqualified. In respect of Thailand, Tanzania and now the UAE, he has canvassed with Ms Thornicroft the prospect of her joining him in these places so as to live there as a family. Her Australian employment while lasting and, more enduringly, the interests of their sons, at least until adulthood, have to date been countervailing factors. Even so, it is a striking feature of the case and hardly likely to be coincidental that, though they first moved to Australia in 2005, and though they did once contemplate building a dwelling here, Mr Pike and Ms Thornicroft have never owned a home in Australia. Renting carries with it a flexibility in relocation that home ownership may not.

In earlier tax residency cases, both in this Court this year and earlier in the Administrative Appeals Tribunal (with Deputy President Hack SC and Senior Member Kenny in
Re Dempsey and Federal Commissioner of Taxation (2014) 98 ATR 698; 2014 ATC 10-363, at [119]), I have regarded statements which appear on an applicant taxpayer's passenger cards, incoming and outgoing, as relevant but far from determinative. Mr Pike's choosing "Resident returning to Australia" yet answering, "No" to the question "Do you intended to live in Australia for the next 12 months?" might be thought self-contradictory, if uninformed by a reading of the tax residency cases mentioned above. As I have observed in earlier cases, answers given on such cards must be read in the context of the overall circumstances relating to a given individual and in the knowledge that the card offers no explanation as to in what circumstances a person might be regarded as a resident. In Mr Pike's case, given that he held visas conferring an Australian right of residence and, more latterly citizenship, I can readily understand how he might have regarded his migration status as resident, even though he did not intend to live in Australia for the whole of the ensuing 12 months. I have not concluded that he was a resident of Australia in terms of the ordinary meaning of that word on the basis of his passenger card

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choice. There are more sure foundations for that conclusion, set out above.

Mr Pike's interest in, and ultimate acquisition of, Australian citizenship is relevant in relation to whether he is a resident but, again, far from determinative. Nowhere does the definition in s 6(1) posit a nationality test. In this case, taken in conjunction with the continuance in Australia throughout the relevant period of his family and family home Mr Pike's interest in and ultimate acquisition of Australian citizenship, especially after Ms Thornicroft and their sons became Australian citizens, is consistent with an intention to continue to make a home with her and them in Australia. He has sought and acquired via citizenship an unrestricted right to live and to work here. But the tie of citizenship is not necessarily the tie of residence. It is trite that a person might hold Australian citizenship yet reside abroad and only abroad. Further, ever increasingly on the evidence, there were other reasons also why Mr Pike sought and obtained Australian citizenship. These are to be found in the travel inconveniences and his perceived personal security advantages in his holding Australian citizenship and with that an ability to obtain and travel on an Australian, rather than a Zimbabwean, passport. I have treated Mr Pike's seeking and obtaining citizenship as a factor which is consistent with a conclusion as to his Australian residence otherwise open on the evidence.

Mr Pike's and Ms Thornicroft's joint acquisition of the Brookwater land with a view to building a home there is also consistent with an intention on Mr Pike's part to reside here. But it needs to be remembered that this was vacant land and the plan to build did not come to fruition. He did not need to own a home in Australia to be a resident here. Mr Pike and Ms Thornicroft were not transients in their occupancy of rented accommodation in Australia. They have made that accommodation their home here.

13. Mr Pike did not challenge any of those paragraphs. Rather, his contention was that the primary judge focused on his status as a de facto husband and father to two boys living in Australia and that when he returned to Australia he invariably resumed living with his wife and children at what Mr Pike described as "the family home". It was submitted that the primary judge erred in placing too much emphasis on his description of Australian rented accommodation without referring to the explanations offered by Mr Pike for using that terminology. It was submitted that Mr Pike explained in his affidavits and oral evidence the "true position" which, it was argued, "was much more nuanced". It was submitted that Mr Pike's reference to the "family home" was meant to convey no more than his "understandable" view that wherever his family resided was their family home, and also his family home when he returned to Australia because he was, and remains, a member of the family.

14. Reference was made to the following parts of the cross-examination of Mr Pike before the primary judge which, it was submitted, were consistent with this submission:

  • (a) at T75, in response to the question, "I am suggesting also that after you went to Thailand you always maintained that you had a home here with your family?", Mr Pike answered "I always maintained I had a connection with my family", and then in response to the question "No, I didn't ask that. You always maintained that you had a home here with your family?", Mr Pike said "My family's home is my home, Sir. So yes, that would be the case";
  • (b) also at T75, Mr Pike said that the statement made in Ms Thornicroft's letter to the Department of Immigration that "Australia, and more so Brisbane, is our family home" was correct and true at the time that it was made, in April 2013, and that it had always applied ever since 2005, when Mr Pike came to Australia;
  • (c) the exchange at T77:

    Looney QC - And that was what you were seeking to convey again with the knowledge of the need for a close association with Australia?

    Mr Pike - So if I can try and answer your question this way: I've always

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    had a lasting connection to Australia from the time I went to Thailand the first time, and that lasting connection is through my family, obviously. I'm part of that family, so it is our home, sir. Can't run away from that fact.

    Looney QC - Would you see the distinction, and if I could take you back to your affidavit in paragraph 100, you make reference to:

    Only meaning to convey the impression that I regarded wherever they were living as their home and also my home during the relatively brief periods when I was back in Australia.

    Can I suggest to you that that's simply not consistent with the documents I've taken you to just now that went to the Department of Immigration? Is there anything you wish to say to that proposition?

    Mr Pike - No, sir. I believe I've answered to the best of my ability.

  • (d) when cross-examined on [101] of his affidavit, in which Mr Pike stated:

    It is true that I intend continuing to return to Australia periodically to visit Michelle and the boys and live with them whilst I was in Australia, but I also intended to live and work overseas indefinitely. I always hoped, and still do hope, that they will eventually be in a position to come and live with me overseas -

    there was the following exchange (at T80):

    Looney QC - So my suggestion to you is that those statements that you now make in paragraph 101 are inconsistent with what you said to the Commissioner, "I always intended returning to Australia to live with my family"?

    Mr Pike - When I moved to Thailand I got an apartment on the basis - a big apartment, my very first one - that my family would join me at some point. That never materialised, okay. I've moved around. I still hold out that they will join me at some point. All right. At the same time, it's evident that through my work, I'm going to be working until I'm 60, all right. I will then retire. Where do I plan on returning when I retire. It could be to Australia. In fact, that answer to that question varies over time from the time I came to Australia to the time where I sit now. That answer has evolved and continues to evolve, so timings, etcetera, it's all the same story, just in different words, sir. That's my interpretation of it. You can use the play on words to interpret it how you wish to interpret it, but it's the same story being told in different ways, sir.

  • (e) the further exchange at T80:

    Looney QC - Well, can I make the observation and ask you to comment upon this, that when using - when you were using words, or you were adopting the words of Ms Thornicroft when communicating with the Department of Immigration, the language was very much conveying the idea that Australia was your home and that you intended to live here, and that when you've - putting together words for this court in relation to the question of residence, their [sic] wholly different words. Do you accept that?

    Mr Pike - I don't accept that, sir, but that may be the case.

15. It was then argued that the objective facts told against a finding of residency as follows:

  • (a) Mr Pike was born in Zimbabwe in 1972 and remains a citizen of Zimbabwe. He holds and has always held a Zimbabwean passport even after he obtained Australian citizenship and an Australian passport;
  • (b) Mr Pike did not come to Australia with his family until 17 March 2005 when he was aged 32; did not work in Australia; left Australia on a number of occasions before departing on 22 March 2006 (having spent approximately 6 months in total in Australia), after which time he took up employment in Thailand on separate contracts with two entities (for 8 years); left Thailand to work in Tanzania, on 1 April 2014, where he lived and worked until

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    moving to Dubai, on 1 April 2015, where he continues to work and live;
  • (c) Mr Pike explained his trips back to Australia during the relevant years as visits to his family (his de facto wife and two sons) who have continued to reside in Australia during the relevant years because the boys were completing their schooling and, more recently, because Ms Thornicroft's mother has moved to live with her in Australia (in 2012);
  • (d) Ms Thornicroft and the boys have visited Mr Pike on numerous occasions over the relevant years at his various residences in Thailand and Dubai;
  • (e) Mr Pike has spent much more time out of Australia than in Australia during each of the relevant years;
  • (f) the fact that Mr Pike continues to provide financial support to his family and continues to support his de facto spouse and children is not a determinative factor. He also continues to support his mother and father and, to some extent, his brothers in Zimbabwe;
  • (g) Mr Pike has no substantial economic connections with Australia, owns no shares in Australia, has no superannuation in Australia and owns no property in Australia;
  • (h) the property where Ms Thornicroft and the sons lived has always been rented property; and
  • (i) the fact that Mr Pike became a citizen of Australia in 2014 is important but not determinative. He did not renounce his citizenship of Zimbabwe and obtained an Australian passport to allow him to travel more freely than his Zimbabwean passport would allow.

16. The objective facts pressed by Mr Pike, if considered alone, would appear to weigh against a conclusion that Mr Pike was a resident of Australia within ordinary concepts in the relevant years. But those facts were only part of the matrix of facts bearing upon the question of residency and they are a blinkered snapshot of the total matrix of the facts. Specifically, we reject the contention that the primary judge placed too much emphasis on the continuing presence in Australia of Mr Pike's de facto wife and children. In
Harding v Federal Commissioner of Taxation [2019] FCAFC 29; 269 FCR 311 ( Harding ), the majority, at 323 [24], agreed with the court below (
Harding v Federal Commissioner of Taxation [2018] FCA 837; 108 ATR 137 at [50]) that, save in the most exceptional circumstances, the existence of a house in Australia maintained by a taxpayer who is working overseas, and the maintenance of a family in that house, has great significance in determining the taxpayer's residency in that it demonstrates a continuity of association with Australia and an intention to treat that place as "home". Harding was a case where it was held that the taxpayer's maintenance of a home and family ties in Australia did not lead to the conclusion that he was a resident of Australia. But the question of residency in each case is fact specific and must be considered in light of the evidence as a whole. The nuance on the evidence which was urged by Mr Pike to support his contention that the primary judge erred in concluding he was a resident according to ordinary concepts is neither compelling nor accurate, having regard to the evidence as a whole and as a considered by the primary judge at [60]-[66], which amply supported the conclusion reached by his Honour that when Mr Pike returned to Australia he did not do so as a visitor but returned to resume living with his de facto wife and family at the family home: [43], [60]-[61]. Such a conclusion was plainly open on the evidence.

17. Accordingly, we respectfully agree with the conclusion and reasons of the primary judge that Mr Pike was a resident according to ordinary concepts in the 2009 to 2016 income years.

WAS THE PRIMARY JUDGE CORRECT TO FIND THAT MR PIKE WAS A RESIDENT UNDER THE DOMICILE TEST FROM APRIL 2014?

18. This issue was raised by ground 3 of the appeal and grounds 5, 6 and 7 of the cross-appeal. In brief, the Commissioner contended that the primary judge ought to have found that Mr Pike was a resident under the domicile test in the income years 2009 to 2014 (inclusive). Mr Pike contended that the primary judge erred in finding that he was a resident under the domicile test at all. In view of our conclusion

ATC 23560

on the ordinary residency test, it is unnecessary to deal with those grounds.

WAS THE PRIMARY JUDGE CORRECT IN THE APPLICATION OF THE TIEBREAKER PROVISIONS OF THE DOUBLE TAX AGREEMENT?

19. This issue was raised by grounds 1 and 2 of the appeal and grounds 10 and 11 of the cross-appeal.

20. The parties were not in dispute that Mr Pike was a resident of Thailand for the purposes of Thai tax during the income years 2009 to 2014 (inclusive). As Mr Pike had dual residency of Australia and Thailand during those income years, it was necessary for the primary judge to consider the application of the tiebreaker provisions in Art 4(3) of the Double Tax Agreement. The Double Tax Agreement entered into force for Australian tax law purposes on 27 December 1989. As the primary judge explained at [90]:

In cases of dual residency, Article 4, cl 3 of the [Double Tax Agreement] provides for what may be described as a "tie breaker" test to determine whether an individual is deemed to be a resident of Australia or, as the case may be, Thailand…

21. Article 4 of the Double Tax Agreement relevantly prescribes as follows:

  • 1. For the purposes of this Agreement, a person is a resident of the Contracting States:
    • (a) in the case of Australia, if the person is a resident of Australia for the purposes of Australian tax; and
    • (b) in the case of Thailand, if the person is a resident of Thailand for the purposes of Thai tax.

    …

  • 3. Where by reason of the preceding provisions, an individual is resident of both Contracting States, the status of the person shall be determined in accordance with the following rules, applied in the order in which they are set out:
    • (a) the person shall be deemed to be a resident solely of the Contracting State in which a permanent home is available to the person;
    • (b) if a permanent home is available to the person in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State in which the person has an habitual abode;
    • (c) if the person has an habitual abode in both Contracting States, or in neither of them, the person shall be deemed to be a resident solely of the Contracting State with which the person's personal and economic relations are the closer.
  • 4. For the purposes of the last preceding paragraph, an individual's citizenship or nationality of a Contracting State shall be a factor in determining the degree of the person's personal and economic relations with that Contracting State.

    …

22. The primary judge held that neither of sub-paras 3(a) or (b) applied. Mr Pike has challenged the primary judge's finding that he had an "habitual abode" in both Thailand and Australia for the purposes of sub-para 3(b) and the Commissioner has challenged the primary judge's finding that Mr Pike's personal and economic relations were closer to Thailand in the relevant years for the purposes of sub-para 3(c).

23. As to Art 4(3)(b), the primary judge at [97] found that Mr Pike had an habitual abode in both Thailand and Australia. His Honour reasoned at [97]-[99]:

As Article 4, cl 3(a) is inapplicable, one "cascades" to Article 4, cl 3(b). In each country, Mr Pike had a habitual abode. Once again though, there is nothing, in my view, to choose between Thailand and Australia. Mr Pike's life routine had two aspects. One was that as, when and for as long as necessary, and always for more than half the year, he worked in or from Thailand and occupied there premises which he had made his home. The other was that as, when and for as long as possible, he lived with his family in Australia. The length of time as between each country for these purposes varied from year to year but, in relation to each country, he had an established residential habit.

ATC 23561

As it happens, this approach accords with the understanding evident in the OECD commentary:

The application of the criterion … requires a determination of whether the individual lived habitually, in the sense of being customarily or usually present, in one of the two States but not in the other during a given period; the test will not be satisfied by simply determining in which of the two Contracting States the individual has spent more days during that period … "habitual abode" [is] a notion that refers to the frequency, duration and regularity of stays that are part of the settled routine of an individual's life and are therefore more than transient … it is possible for an individual to have an habitual abode in the two States, which would be the case if the individual was customarily or usually present in each State during the relevant period, regardless of the fact that he has spent more days in one State than in the other.

For these reasons, I reject the Commissioner's submission that Article 4, cl 3(b) confers taxing entitlement on Australia. Equally though, for those same reasons, I do not accept Mr Pike's submission that habitual abode ought to be determined just by length of residence such that Mr Pike's greater length of residence in Thailand in each year meant that, between the 2009 and 2014 income years, only in Thailand could be said to have a habitual abode

24. Mr Pike contended that the primary judge erred in holding that he had an habitual abode in both countries, when the period of time that he spent in Thailand was "considerably more" than the period of time that he spent in Australia. It was argued that the Organisation for Economic Co-operation and Development's commentary ( OECD commentary ) on Art 4 on which the primary judge placed reliance (which was the 2017 version) had limited utility as an aid to interpretation of the Double Tax Agreement as Art 4 of the OECD's Model Tax Convention on Income and on Capital ( Model Tax Convention ) is in materially different terms to Art 4 of the Double Tax Agreement. Further, it was submitted, in any event, the passage quoted at [98] of the primary judgment omitted the example given later in [19] of the 2017 version of the OECD commentary on Art 4, which reads as follows:

Assume, for instance, that over a period of five years, an individual owns a house in both States A and B but the facts do not allow the determination of the State in which the individual's centre of vital interests is situated. The individual works in State A where he habitually lives but returns to State B two days a month and once a year for a three-week holiday. In that case, the individual will have an habitual abode in State A but not State B.

It was submitted the example given is consistent with the proposition that the habitual abode question ought to have been resolved in favour of a conclusion that Mr Pike's only habitual abode was in Thailand in each of the 2009 to 2014 years.

25. The principles for construing a provision of a double tax agreement are well established. The principles contained in Arts 31(1) and 32 of the Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) require treaties to be "interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose" (Art 31(1)) and provide that, in that task, recourse may be had to supplementary means of interpretation in order to confirm the meaning resulting from the application of Art 31 or to determine the meaning when the interpretation according to Art 31 leaves the meaning ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable (Art 32). It is well established that the OECD commentary to the Model Tax Convention is a legitimate aid to construction:
Thiel v Commissioner of Taxation [1990] HCA 37; 171 CLR 338, at 349-50 per Dawson J, at 357 per McHugh J (Mason CJ and Brennan and Gaudron JJ agreeing at 334);
Commissioner of Taxation v SNF (Australia) Pty Ltd [2011] FCAFC 74; 193 FCR 149 at 183 [107] and 184 [114];
Bywater Investments Limited v Commissioner of Taxation [2016] HCA 45; 260 CLR 169 at 228 [167] per Gordon J.

ATC 23562

26. Article 4 of the Model Tax Convention is in substantially the same terms as Art 4(3)(c) of the Double Tax Agreement, save that the order of the cascading provisions in the tiebreaker test is different. Art 4 of the Model Tax Convention, as it was in the 2009 to 2014 years, was in the following terms:

RESIDENT

  • 1. For the purposes of this Convention, the term "resident of a Contracting State" means any person who, under the laws of that State, is liable to tax therein by reason of his domicile, residence, place of management or any other criterion of a similar nature, and also includes that State and any political subdivision or local authority thereof. This term, however, does not include any person who is liable to tax in that State in respect only of income from sources in that State or capital situated therein.
  • 2. Where by reason of the provisions of paragraph 1 an individual is a resident of both Contracting States, then his status shall be determined as follows:
    • (a) he shall be deemed to be a resident only of the State in which he has a permanent home available to him; if he has a permanent home available to him in both States, he shall be deemed to be a resident only of the State with which his personal and economic relations are closer (centre of vital interests);
    • (b) if the State in which he has his centre of vital interests cannot be determined, or if he has not a permanent home available to him in either State, he shall be deemed to be a resident only of the State in which he has an habitual abode;
    • (c) if he has an habitual abode in both States or in neither of them, he shall be deemed to be a resident only of the State of which he is a national;
    • (d) if he is a national of both States or neither of them, the competent authorities of the Contracting States shall settle the question by mutual agreement.
  • 3. Where by reason of the provisions of paragraph 1 a person other than an individual is a resident of both Contracting States, then it shall be deemed to be a resident only of the State in which its place of effective management is situated.

27. There has been a subsequent change to the drafting of Art 4(3) of the Model Tax Convention but that change is not material in this context.

28. The OECD commentary includes a chapter on Art 4. The 2017 version of the commentary to which the primary judge referred was not the commentary as it was at the time that the Double Tax Agreement entered into force in Australian law. It is, however, unnecessary in this case to resolve a question as to whether a later commentary can be relied on to assist in the construction of a double tax agreement (
Burton v Federal Commissioner of Taxation [2019] FCAFC 141; 271 FCR 548 at 579-80 [124] per Steward J) as [19] of the 1977 OECD commentary on Art 4, which was the commentary in place at the time the Double Tax Agreement was entered into, was not in materially different terms to the 2017 version of the OECD commentary. Critically, it did not provide that a person's habitual abode is the place in which the person spends the most time. Paragraph 19 of the 1977 version provided:

In stipulating that in the two situations which it contemplates preference is given to the Contracting State where the individual has an habitual abode, sub-paragraph b) does not specify over what length of time the comparison must be made. The comparison must cover a sufficient length of time for it to be possible to determine whether the residence in each of the two States is habitual and to determine also the intervals at which the stays take place.

29. Applying the interpretative principles that are applicable to the construction of Art 4 of the Double Tax Agreement, there is no warrant, in our opinion, for imputing that the habitual abode of a person is the place where the individual has spent more days. The primary judge in our view correctly rejected that argument at [99].

30.

ATC 23563

First, that is not the language of Art 4(3)(b) and there is no warrant to give the expression "habitual abode", which is not defined for the purposes of Art 4(3)(b) of the Double Tax Agreement nor Art 4 of the Model Tax Convention, a meaning other than the meaning conveyed by the ordinary meaning of the phrase. Mr Pike placed reliance on the OECD glossary of tax terms, which does contain a definition of "habitual abode" that suggests that it "refers to the period of time a taxpayer spends in each country". But that glossary does not assist Mr Pike as it does not form part of the OECD commentary and, more particularly, the glossary is specifically headed by a disclaimer in the following terms:

Disclaimer: Explanations on the terms are very condensed and may not be complete. They are not considered to necessarily reflect official position of the OECD in interpreting international tax terms, for example, in the tax treaty context.

31. Secondly, none of the versions of the OECD commentary explain Art 4(3)(b) of the Model Tax Convention as operating in the way Mr Pike contends. The example given in [19] of the 2017 OECD commentary on Art 4 to which Mr Pike referred does not support the contention that the place of habitual abode is the State where the taxpayer spends the most time.

32. Thirdly, the substantive difference between Art 4(3) of the Double Tax Agreement and its cognate in the Model Tax Convention is the order in which the tests operate. In particular, the Double Tax Agreement provides that the permanent home test is the first tiebreaker test. The Double Tax Agreement then uses the habitual abode test as the second tiebreaker test and the personal and economic relations test is the third test, whereas the Model Tax Convention uses the second and third tests in the opposite order. The Model Tax Convention also contains additional steps in the tiebreaker test that are not adopted in the Double Tax Agreement. We discern no particular significance arising from that order nor from the additional steps for the purposes of the construction and application of Art 4(3)(b) of the Double Tax Agreement in this case. Nor did either party suggest any particular significance.

33. We agree with and adopt the reasons of the primary judge for concluding that during the relevant years Mr Pike had an habitual abode in both countries. No error is discernible in his Honour's reasoning or conclusion.

34. That leaves the application of the "personal and economic relations" test in Art 4(3)(c) of the Double Tax Agreement. The primary judge at [104] held that "when considered conjunctively", Mr Pike's personal and economic relations were closer to Thailand than Australia between 2009 and 2014. The Commissioner did not cavil that Art 4(3)(c) involves a conjunctive test. Indeed, the Commissioner accepted that the primary judge correctly observed that Mr Pike's "personal and economic relations" had to be considered conjunctively. However, it was submitted, in applying that test the primary judge fell into error by applying the test disjunctively. It was argued that rather than considering whether Mr Pike's "personal and economic relations", taken together, were closer to Australia or Thailand, the primary judge considered first whether Mr Pike's personal relations were closer to Australia or Thailand and secondly, as a separate and independent consideration, whether Mr Pike's economic relations were closer to Australia or Thailand. So much was said to be apparent from the reasons at [101]-[102] where his Honour stated:

On the evidence, Mr Pike undoubtedly had a range of personal relations while he resided in Thailand. He formed particular friendships and actively engaged in various sporting and social activities there. As Ms Thornicroft neatly put it, "He had a life there." He was hardly there a mere fly in/fly out worker eating and sleeping at a work camp with no wider community life. However, at an emotional level, his closer personal relations were, undoubtedly, with Ms Thornicroft and their sons in Australia. In contrast and overwhelmingly, Mr Pike's economic relations were closer to Thailand. It was this Thai sourced income stream, derived from Mr Pike's ongoing employment there, which not only supported his life and lifestyle there but

ATC 23564

also, all the more so after Ms Thornicroft's employment with Ernst & Young came to an end, supported his family in Australia, including him, when he was able to be with them. Contrary to his original aspiration, Mr Pike had never been employed in Australia. There is not even any evidence that the group of which PTAL was a member was controlled from Australia. His journeys here were wholly personal, never in the additional nature of reporting in person to, or working for a time at, a "head office" or even controlling regional office.

For part of the period between 2010 and 2013, Mr Pike owned a capital asset in Australia, the Brookwater land. While I accept that this land can, on the basis of ownership alone, be regarded as evidencing an economic relationship with Australia, it did not have the additional feature of being a competitor of any sort with the Thai employment for income production. Mr Pike maintained bank accounts in both Thailand and Australia but these were but conduits through which living and other expenses in Thailand or Australia for him or, as the case may be, him and his family were met. Mr Pike jointly owned cars in Australia but, even taken in conjunction with the Brookwater land, as a foundation for relative closeness of economic relations, these pale into relative insignificance when compared with Mr Pike's Thai employment.

35. Further, it was submitted that irrespective of whether the primary judge applied the correct test, the primary judge erred in not finding that Mr Pike's personal and economic relations were closer to Australia. Relevant findings said to support that conclusion were said to be as follows:

  • (a) that Mr Pike was "devoted" to his family and had "enduring ties of love and affection for his wife and sons" and returned to Australia "to live with his family as often and for as long as possible" (primary judgment at [61] and [62]);
  • (b) that "[a]ll throughout the lengthy periods of work-related separation from Mr Pike, [Ms Thornicroft] remained committed to their relationship and regarded, for good reason, Mr Pike as similarly committed with the premises rented in Brisbane from time to time being regarded as their family home" (primary judgment at [32]);
  • (c) that the "true position" was revealed by the following exchange with Ms Thornicroft during cross-examination (primary judgment at [32]):

    And in terms of that, you would agree with me that the most important thing between you and Mr Pike throughout the whole of your relationship has been the importance of family? --- Yes. The children, yes.

    The children and you? --- Yes.

  • (d) that "[w]hen returning to Australia, Mr Pike has always returned to the home where Ms Thornicroft and their sons were for the time being located. He has always regarded this as the family home. Over the years, his returns to Australia have coincided with family occasions, such as birthdays, Christmas and school prize giving and have also been occasioned by family emergencies" (primary judgment at [43]);
  • (e) that "[w]hen Mr Pike returned to Australia he was not, as his submissions invited [the primary judge] to conclude, a resident of Thailand, Tanzania or, as the case may be, Dubai in the UAE, returning as a visitor to Australia. Rather, he returned as husband (de facto) and father to resume living - residing - with his wife and children at the family home. It was not just their family home; it was his also;" (emphasis in original) (primary judgment at [60]);
  • (f) that Ms Thornicroft and "Mr Pike had aspired to [obtain Australian citizenship] for themselves and their sons ever since relocating to Australia in 2005" (primary judgment at [25]);
  • (g) that in support of Mr Pike's application for Australian citizenship, Ms Thornicroft had written a letter which stated "Australia and more so Brisbane is our family home. [Mr Pike] returns home regularly and is truly invested in our lives here" (primary judgment at [29]);
  • (h) that Mr Pike "regularly transferred funds to [his joint account in Australia] to support Ms Thornicroft and their sons," that shortly after

    ATC 23565

    Mr Pike moved to Australia from Zimbabwe he "obtained a credit card with an Australian bank" and that Mr Pike jointly owned cars in Australia (primary judgment at [21] and [102]);
  • (i) that "[i]n September 2010, Mr Pike and Ms Thornicroft… purchased vacant land at Brookwater… a residential golf community in Ipswich, Queensland. Their intention was not only to build a family home on that land but also to provide something tangible in Australia for their sons" (primary judgment at [24]).

36. Additionally, it was argued the acquisition of Brookwater land soon after Ms Thornicroft and the couple's sons obtained Australian citizenship reflected both an economic and personal relation to Australia for Mr Pike. Reference was made to Mr Pike's evidence in cross-examination that citizenship was a "game changer" because, compared to the "volatile situation" in Zimbabwe, he and Ms Thornicroft could put their name against a piece of property which they could hand to their children. It was submitted that given Mr Pike had always held the "wish", since arriving in Australia in 2005, that he and his family would all become Australian citizens, the acquisition of the Brookwater land in 2010, following Ms Thornicroft being granted citizenship, was confirmation of Mr Pike's desire for close personal and economic relations with Australia. It was also argued that the fact that Mr Pike's personal and economic relations were closer to Australia than Thailand was reflected by the fact that consideration was given to Ms Thornicroft and their sons joining him to live in Thailand, but this was rejected as both he and Ms Thornicroft decided it was in the best interests of the family for the family to remain in Australia. By contrast, the argument went, Mr Pike's personal and economic relations with Thailand were found to be centred on his employment there, social contacts he had made through sport and the establishment of a bank account in Thailand.

37. Finally, it was submitted that the findings and the evidence reflected that Mr Pike had an enduring and permanent connection to Australia that persisted irrespective of changes in employment. In contrast, the connection to Thailand existed only while work was available. In this context, it was submitted, the primary judge's finding that Mr Pike's personal relations were "undoubtedly" closer to Australia, and not Thailand, should have led him to conclude that Mr Pike's "personal and economic relations" were closer to Australia. Reliance was placed on [15] of the OECD commentary on Art 4, which has been unchanged since the 1977 version of the OECD commentary and which states that "it is nevertheless obvious that considerations based on the personal acts of the individual must receive special attention", and on the New Zealand Taxation Review Authority decision in
FFF v Commissioner of Inland Revenue [2011] NZTRA 8 ( FFF ) in which the authority observed at [62] that:

If the economic factor is closer to one place and the personal factor closer to another, it will be resolved by which of the two localities is of greater significance to the taxpayer.

38. We reject both the contention that the primary judge applied a disjunctive test, not a conjunctive test, and the contention that the findings of facts should have led the primary judge to conclude that Mr Pike's personal and economic relations were closer to Australia.

39. First, no error is discernible in the approach of the primary judge in examining Mr Pike's personal and economic considerations. Each case must be fact specific. In some cases the personal and economic considerations may be so intertwined that they are not separate considerations, whereas in other cases, they may be quite separate and distinct matters. Further, and contrary to the New Zealand decision in FFF, the clause does not place greater weight on personal factors over economic factors. As the parties agreed, Art 4(3)(c) poses a composite test and in each case it will be a matter of fact and degree as to whether a taxpayer's personal and economic relations, viewed as a whole, support ties closer to one contracting state over the other contracting state. The primary judge correctly looked at Mr Pike's overall circumstances and engaged in a balancing of the significance of those personal and economic

ATC 23566

considerations as supporting ties closer to one contracting state than the other.

40. Secondly, it was not put that the primary judge failed to make any necessary finding of fact, nor that the primary judge made any wrong findings of fact on which his Honour based his conclusion that Mr Pike's personal and economic relations were closer to Thailand, nor that the primary judge took irrelevant considerations into account or failed to take relevant considerations into account. Rather, the Commissioner's case, in substance, rested on the weight which the primary judge attributed to some of the facts. Critically, in that regard, the primary judge expressly considered, and was of the view, that Mr Pike's personal relations were closer to Australia than Thailand.

41. Thirdly, an evaluation of the facts does not persuade us that the conclusion of the primary judge was wrong:
Warren v Coombes [1979] HCA 9; 142 CLR 531 at 551 per Gibbs ACJ, Jacobs and Murphy JJ;
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at 437-8 [28]-[29] per Allsop J;
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 at 559-63 [40]-[49] per Gageler J;
Commissioner of Taxation v Scone Race Club Limited [2019] FCAFC 225; 374 ALR 189 at 198-9 [46] per Griffiths J. An appeal court will not overturn the decision of the primary judge merely because it prefers an outcome different from that adopted by the primary judge where both outcomes are equally available or finely balanced. In our view, this is such a case as the findings of fact upon which the Commissioner rested his case do not compel a different conclusion. Nor can it be said that the conclusion reached by the primary judge was not reasonably open.

CONCLUSION

42. Accordingly we would dismiss the appeal and cross-appeal.

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The cross-appeal be dismissed.

3. Within seven (7) days of this order, the parties are to confer with a view to reaching agreement about the appropriate costs order and, in the absence of agreement, each party is to provide written submissions of no more than three (3) pages and, subject to any further order, the Court will then determine the issue of costs on the papers.

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


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