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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 51
Van Uden v Commissioner of Inland Revenue
[2018] NZCA 487
o
Facts
A sea captain spent eight months per year at sea, and most of the other four months in a house in
Auckland owned by his family trust
Van Uden also had relaves that they looked aſter while living in New Zealand
Van Uden paid for a SKY TV account at the property, and described the property as his “own home” in
loan documentaon
o
Judgment
The property was held to be van Uden’s permanent place of abode in New Zealand
Applying the factors:
Connuity – he has had a connuous presence in New Zealand, and whenever he returned to
New Zealand, he would live in the property
Duraon – he has used the property for around 12 years
Durability of associaon – he has a strong associaon with the property because he paid for
a SKY TV account, and used the address for bills, bank statements, insurance policies and
investments
Closeness of connecon – although he did not own the property, this is not fatal; whenever
he returned to New Zealand, he would stay at the property; in a mortgage applicaon, he
referred to the property as his home
Permanency – the property was permanent because it was always available to him when he
returned to New Zealand
THE “183 DAY” TEST
YD 1
Residence of natural persons
…
(3)
A
natural person
is a New Zealand resident if they are personally present in New Zealand for more than 183 days in total
in a 12-month period.
(4)
If subsecon (3) applies, the
natural person
is treated as resident from the first of the 183 days unl the
natural person
is
treated under subsecon (5) as ceasing to be a New Zealand resident.
The 183 days do not have to be consecuve
The 183 days do not all have to be in the same financial year – it can be any 12-month period
o
You are then subject to New Zealand tax for the period in which you are resident (which could be halfway
through one financial year and then some me in the next)
Note that if you meet the 183 day test, then you are treated as resident from the first of those 183 days, not aſter the
183 days has passed
o
For example, if you don’t have a permanent place of abode in New Zealand and spend more than 325 days
away from New Zealand, you are non-resident – but if you come back for 3 weeks, then go back overseas and
do work there and get paid income, then come back for more than 183 days, then you are resident from the
moment you came back; as you are a resident, you pay tax on the income paid overseas
THE “325 DAY” TEST
YD 1
Residence of natural persons
…
(5)
A natural person treated as a New Zealand resident only under subsecon (3) stops being a New Zealand resident if they
are personally absent from New Zealand for
more than 325 days in total in a 12-month period.
(6)
The person is treated as not resident
from the first of the 325 days
unl they are treated again as resident under this
secon.
What happens if you have a permanent place of abode in New Zealand and are absent for more than 325 days?
o
Doesn’t maer – the permanent place of abode test trumps everything else
The 325 days do not have to be consecuve or occur in the same financial year – they just have to be in a 12-month
period
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