The 'Ordinarily Reside' test a risky bet to rely on for Absentee exemption

The 'ordinarily reside' test - do not rely on this as a way to seek an exemption from being an Absentee for more than 6 months.

I have been in 'discussions' with a few members on a Property Chat forum (not good for the blood pressure mind you!). One of the members appears to be a tax accountant states,

"Someone who can demonstrate being ordinarily resident in Australia is not subject to the absentee rules and the 6 month test isn't applicable ON APPLICATION - Form LT16. Merely being absent from Australia on a holiday is not a taxing concern even if its 6 or 7 months."
"All persons away 6mths + must apply and provide evidence for the Commissioner."

He has referred to the appropriate section of the QLD Land Tax Act which I am also familiar with - Section 31:

"If you have lived outside of Australia during the financial year, we will consider several factors to determine if you usually live in Australia, such as the reason for your absence and the time spent in and out of the country. If we are not satisfied that you mainly resided in Australia, you will be an absentee if you:
were away from Australia at 30 June or
have been away from Australia for more than 6 months in total during the financial year before 30 June.
31 Meaning of absentee
(1) An absentee is a person who does not ordinarily reside in Australia.
(2) An absentee includes a person who—
(a) can not satisfy the commissioner that he or she ordinarily resides in Australia; and
(b) when ownership of the person’s land is decided for this Act—
(i) is absent from Australia; or
(ii) has been absent from Australia for more than half of the 12 month period"

I have argued the problems experienced with trying to apply the 'ordinarily resides' argument to the LT16 and subsequent Objection lodged - both of which were rejected.
The OSR Commissioner is extremely strict in its application of this test and more likely than not the application will be rejected.

It would be at great peril to take a risk of hoping the OSR will agree to your 'ordinary residence' argument and waive your Absentee Surcharge & hiked Land tax. Not only that, you will need to report to the OSR upon your return and submit all documents to support your claim against the Absentee charges.

In my case my application was rejected - despite me arguing that Australia was my main residence. My downfall was that I spent my time in one country and had some mail redirected there for convenience. I was on a tourist visa - definitely not permanent and staying in temporary rented accommodation. The added complication of falling ill requiring hospital treatment and being certified as 'Not Fit to Fly' for 3 months was also a factor for me.
The non-resident test set by the Federal Government legislation is far more relaxed and caters for many different scenarios. I was not deemed a non-resident by the ATO but not for QLD.

So, yes there is a clause in the section to allow for people to be out of Australia longer than the 6 months, but the chances of being able to convince the OSR that you ordinarily reside in Australia is not guaranteed. And from current feedback it appears that rejections are the norm, not the exception.

Of course for those who are expats or workers residing overseas permanently then Absentee taxes apply anyway, even if you satisfy the resident test with the ATO.