Absentee Surcharge taxes determined on past and well as future travel behaviours and intentions

The ambiguity of the Land Tax Act in respect to determining Absentee status has been acknowledged by the Queensland Office of State Revenue from a response to a complaint I submitted. Letter dated 13 May 2019.

Their justification is because, "While these provisions may seem ambiguous, specific criteria would not provide flexibility to fairly consider the wide variety of circumstances that may exist in a particular case".

The OSR explains how it determines status:
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"The absentee provisions contain a series of considerations in determining whether someone is an absentee for land tax purposes. In the first instance, OSR considers whether a person ordinarily resides in Australia. This is the consideration set out in s.31(1) above. There is a wide range of information that may be taken into consideration in determining this, but the question can involve some degree of judgement based on the information available. Some types of information we consider include, but are not limited to:

• where a person states is their residential address, and how long they have lived at that location
• the location of a person's employment and the proximity of that employment to their residence
• which address a person uses to receive correspondence, and
• which type/s of visas have been held or applied for by the person both in a foreign country or Australia, as may be relevant.

If, after considering the relevant facts and circumstances, we can be satisfied the person ordinarily resides in Australia, then the person will not be considered an absentee.

If a person cannot provide sufficient information to satisfy us they ordinarily reside in Australia, then we consider the requirements in s.31(2) of the LTA i.e. where a the person was on 30 June of the relevant year or if they have been absent for more than 6 months in the year preceding.

Both of these considerations may assist us in forming a view on whether a person ordinarily resides in Australia.

In considering where a person ordinarily resides, a one-off short-term absence for a holiday would not negate the fact a person ordinarily resides in a home in Australia when their regular employment, social and/or family activities are conducted in Australia. If a person is absent from Australia for a more extended period, or there are multiple short-term absences across one or several years, a full consideration of the facts and circumstances may indicate that they are not ordinarily residing in Australia".
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This reveals how confusing the legislation can be and how difficult it is for people to avoid becoming an Absentee.
Being in Australia for more than 6 months per year is not sufficient in itself, as is being in Australia on 30 June.

Multiple short term holidays away may well also cause the OSR to determine you are not ordinarily residing in Australia.

It also has been conveyed to me that that also extends to your past travel behaviour, that will apply to future financial years. Your future plans can also be taken into account by OSR.

It is a reverse onus of proof upon you to prove you are not an Absentee as opposed to OSR proving you are.