Tax Technical Problems - Mr. and Mrs. Lightyear's Case Study

Assignment Task

The facts:

Mr. B. Lightyear is an Australian national having been born here in June 1978. He is an Australian citizen and holds an Australian passport. He also holds a Canadian passport.

Mr. B. Lightyear started his working life as a cardiac surgeon with BAE International Hospital Systems, a largely not-for-profit hospital that assists underprivileged persons. He left Australia at a relatively young age and was married to his first wife (Ms. Tracey Lightyear – a British national) on 20 July 2000 in Canada.

In December 2000, Mr. B. Lightyear’s employment with BAE International Hospital Systems caused him and his wife to move to a town in South Africa. Mr. and Mrs. Lightyear lived there for about 7 years after which they moved to West Africa. For all of that time, Mr. B. Lightyear continued his employment with BAE International Health Systems. During this period Mr. and Mrs. Lightyear had two-children and, on each occasion, Mrs. Lightyear returned to Canada for their birth and only returned once they were about six weeks old.

Mr. and Mrs. Lightyear enjoyed life in West Africa as part of the expatriate community. Mr. B Lightyear’s skills were also highly sought after Africa and provided him with lucrative employment opportunities.

Due to internal civil unrest in 2007, including a number of armed attacks that occurred in the area that the lightyears were living, Mrs. Lightyear returned to Canada with her two daughters where those girls continued their schooling.

Although they returned to West Africa in September 2009, in the following year Mr. and Mrs. Lightyear decided to relocate to Australia. For Mrs. Lightyear the move to Australia was always intended to be temporary and only until the security situation in Africa improved.

At this time, she was pregnant with her third child. In Australia, Mr. and Mrs. Lightyear built a house in Wollongong in New South Wales, which was completed in early 2012. It appears that the location was chosen due to its proximity to Mr B. Lightyear’s parents and siblings.

Mrs. Lightyear and her two girls moved into the property in July 2012. Mr. B. Lightyear remained in West Africa until March 2014 at which time he decided to leave Africa and rejoin his family in Australia.

In Australia, Mr. B. Lightyear moved into the family home at Wollongong. He commenced working for a hospital called FESTA as a lead cardiac surgeon. Although he enjoyed this role and being back in Australia, he was receiving significantly less income than was available to him in Africa. The reduced remuneration had the consequence that the lifestyle which he had previously enjoyed was affected and somewhat diminished. That said, he remained in Australia for approximately three years.

In January 2017, he received an offer of employment to join the University Hospital, which was a Toronto-based hospital in Canada. The offer was to work in their offshore hospital in South Africa as the Chief cardiac surgeon. The salary attached to the position, being USD$1,075,000, was substantially in excess of what he was then receiving being AUD$315,000 and, in those overseas jurisdictions, his income would be taxed at substantially lower tax rates.

Mrs. Lightyear had agreed that their three children and she would relocate to South Africa in or around July 2018. This would give her husband a chance to see whether he liked his new position. Mr. B. Lightyear claims that when he left Australia in January 2017, he did so with an intention to live and work in South Africa permanently or, at least, indefinitely. He said he had no fixed intention of when or if he would return to Australia. He also claimed that he expected that Mrs. Lightyear and their children would join him in South Africa around July 2018 and that they would live with him.

He further said that when he left in January 2017 he did not expect to ever live in the property at Wollongong again. For that reason, he took his clothes, suits and other personal belongings with him to South Africa. He sold all of his significant personal possessions in Australia including his boat and his car. Although some of his possessions remained, they were not of a type that Mr. B. Lightyear ever intended to use again. These included fishing gear and a small tin runabout, as well as water skis.

He retained joint ownership of the family home in Wollongong with his wife. However, he intended that to be for the use and enjoyment of his wife and his children whilst they remained living here.

Mr. B. Lightyear did return to Australia each year. Generally, he did so when it was convenient to his working conditions. When he returned he stayed in the Wollongong
property with his family. He claimed that he did so because that was where his wife and family resided but that he was then effectively only visiting them. Moreover, he did not intend to take up full-time work in New South Wales ever again.

From about January 2017 until about November 2018, Mr. B. Lightyear lived and worked in South Africa. He had entered into an employment contract with University Hospital. While the contract was for a duration of 12 months, it is apparent the agreement was varied and extended over time. For the full extent of the period during which he was living and working in South Africa, he only ever signed the one employment agreement. Since University Hospital was Canadian-based, Mr. Lightyear was required to travel to Canada for one weekend each month for Continuing Medical Education (CME) at the Toronto-based University Hospital.

During the time Mr. B. Lightyear lived in South Africa, he resided in an apartment building called “Forky Towers”. Whilst he moved from unit to unit as his circumstances required, he remained located in the same unit block. Initially, he took a two-bedroom apartment because he believed this his wife and children would visit him from time to time. He remained in that apartment from 10 February 2017 until 9 February 2018.

All the apartments that Mr. B. Lightyear occupied were fully furnished apartments and the additions which Mr. B. Lightyear made to the contents of the apartment were more for comfort rather than out of necessity and were not enduring.

Each of the apartments was leased from the same South African national who owned all three apartments in which Mr. B. Lightyear lived.

Pursuant to the lease agreements, Mr. B. Lightyear was responsible for utility charges to the extent to which they exceeded South African rand ZAR65 per month. He was
responsible for telephone charges. The units were not serviced per se, however, Mr. B. Lightyear utilized the facilities offered by the apartment building complex to secure the services of a cleaning lady once a week.

Mr. B. Lightyear claims that these units became his home and when he went on holiday, he would leave his personal belongings there. He had exclusive possession of the
apartments pursuant to the leases.

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