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LAWCOMM 403 long notes.docx
LAWCOMM_403_long_notes.docx
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LAWCOMM 403 long notes.docx-CONTENTS Tips ...........
LAWCOMM_403_long_notes.docx-CONTENTS Tips ......................................................................................................................................................................................... 4 Introducon ............................................................................................................................................................................
LAWCOMM 403 long notes.docx-CONTENT...
LAWCOMM_403_long_notes.docx-CONTENTS Tips ......................................................................................................................................................................................... 4 Introducon ............................................................................................................................................................................
Page 50
Did Diamond have an available dwelling in New Zealand during the relevant tax years?
Assessing Diamond’s other connecons with New Zealand
On the facts of this case Diamond did have a permanent abode in New Zealand:
Diamond did have an available dwelling in New Zealand because he was the beneficial owner
of the house – although he rented it out, he could have ceased the tenancy agreement and
live in it himself
Diamond had strong connecons to New Zealand because he had an available dwelling to
return to and maintained close family and financial es to New Zealand
o
Judgment (High Court)
Disnguished
Case Q55
on the basis that despite renng the house out, the taxpayer in that case had
always intended to return to New Zealand and to live in that house when he returned
“To have a permanent place of abode” means “to have a home in New Zealand”
On the facts of this case, Diamond had no home in New Zealand because he had and has sll
not ever lived at the house, and he had no connecon to it – he only ever used it for
investment purposes
Despite Diamond’s other personal connecon with New Zealand, they do not affect the
conclusion that the house is not Diamond’s permanent abode
o
Issue
Is the “permanent abode” test that a house CAN be available to abide in and has sufficient
connecons with the taxpayer, or that it has and is intended to be a place to abide in?
o
Submissions
The Commissioner argued that there need only be a place in which the taxpayer CAN abide – there is
no requirement for the place to constute the taxpayer’s home, nor that they have lived there before
o
Judgment
Affirmed the High Court judgment
What is a “permanent place of abode”?
The plain meaning of the words suggests that there needs to be something more than the
mere availability of a place to stay and implies actual usage of the house for residenal
purposes
But the legislave history and interpretaon suggests that it can include a place where the
taxpayer habitually resides from me to me even if they spend periods of me overseas
It is a queson of fact – it requires an overall assessment, which will be highly contextual and
can turn on the circumstances of the case
The test is to determine the nature and quality of the use the taxpayer habitually makes of a
parcular place of abode during the tax years in queson
However, evidence of the relevant circumstances before and aſter those tax years may be
taken into account if they bear upon the above queson
Factors to consider include:
a.
The connuity or otherwise of the taxpayer’s presence in New Zealand and in the dwelling
b.
The duraon of that presence
c.
The durability of the taxpayer’s associaon with the parcular place
d.
The closeness or otherwise of the taxpayer’s connecon with the dwelling – the situaon
before and aſter a period of periods of absence from New Zealand should be considered
e.
The requirement for permanency is to disnguish merely transient or temporary places of
abode
f.
The existence of another permanent place of abode outside New Zealand does not preclude
a finding that the taxpayer has a permanent place of abode in New Zealand
In this case, Diamond did not have a permanent place of abode in New Zealand
The house has never been and was never intended by him to be his home – he never lived in
it and only ever used it as an investment, so it cannot be a dwelling with which he has
enduring and permanent es
Although he had other personal connecons with New Zealand, they do not alter the above
conclusion – if the property does not carry any characteriscs of a permanent place of
abode, other connecons cannot alter that conclusion
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