Jim Lucas is 44 years old, an Australian-resident employee works for the mining company in Brazil Mining Ltd. He resides in a house in Nundah, Brisbane where his wife, Joanne and their 2 children live: Amy 17 years old, and Kristofer, 15 years old, who attend Nundah State High School. Jim's employer offered him an overseas temporary 2-year work assignment, in Brazil. He has the option to either return to Australia at the end of that period or extend his work contract for a further 12 months. With the rising cost of living, and higher interest rates, he decided to take the offer on 15 July 2021. Jim is initially accompanied by his wife and children to enable them to experience the sights and culture of Brazil, and to see where their father will live when living abroad.

Some important information includes:

• In July 2021 Jim's wife and children return to the family home, so they can continue their schooling.
• Jim sold his car and boat.
• Jim cancelled his health insurance.
• To enjoy the culture and lifestyle of Brazil, Jim purchased an apartment in September 2021. Up until moving into the apartment, Jim lives in temporary accommodation on the mining site from 15 July 2021 to September 2021.
• In July 2021, Jim opens a HSBC bank account in Brazil and will transfer money from this account to his wife's CBA bank account, under her maiden name, Joanne Jones.
• He acquired 40,000 Brazil mining shares in August 2021.
• The house is in Joanne's name, at 24 Miles Road, Nundah.
• Jim returns and spends as much time in Australia as his leave entitlements permit visiting family and friends.
• A total of 91 days was spent in Australia for the 2022 year of income and 160 days in the 2023 year of income.
• At the beginning of 2023, both children are boarding at school, and Joanne decides to sell the family home and move to Brazil.
• After 4 months of unsuccessfully selling the property, Joanne is preparing to Airbnb the property.
• Jim returns to Australia on 15 June 2023, to attend his father's funeral. After the funeral, he decides to return to Australia.
• Upon returning to Brazil, he sells his apartment (in Jim Lucas name). The contract was signed on 29 June 2023, and he makes a net capital gain of $800,000, which was banked in his HSBC bank account on 10 July 2023.

Income received:

• Salary of $200,000 earned for both income years in 2022 and 2023.
• Capital gain $800,000 on 10 July 2023
• Dividend from Brazil Mining Ltd: $4,000 in 2022, and $4,600 in 2023.
• Interest received from HSBC for income years 2021: $1,000 in 2022: $3,000.

Notification from ATO

In September 2023, Jim receives a notice of assessment from the ATO, assessing his income earned in Brazil, and capital gain as a resident of Australia for the income tax years 2022 and 2023 under the new residency ruling underTaxation Ruling TR 2023/1.

Jim does not accept the ATO's determination that he is still an Australian resident for both the 2022 and 2023 year of tax, and wants to know whether he can successfully legally challenge the ATO, on the grounds that he was no longer an Australian resident for the above years.

You are advised, the income tax rate in Brazil is 7%, and capital gains tax is 15%. While in Australia, his average marginal tax is 35%.

Required:

File Note - application of facts to relevant law

In a file note document, refer to the ruling and case law, and demonstrate your tax law research and the relevance of the law to Jim' situation. You should use the information you know about Jim plus information that might be relevant in the future based on your legal knowledge to advise Jim whether he would be considered a resident or non-resident for taxation purposes determining whether the above income received will be assessable. You should discuss what criteria in the law, Jim will rely on to establish whether his residency is either in or out of Australia. An easy way of achieving this is to structure your file note in the format, as applied in seminars.You should ensure that you justify your research and application by referencing relevant case law, legislation and tax rulings.

Letter of Advice

Based on your research and application of James' circumstances in the File Note draft a letter to Jim. You should advise Jim what is the likelihood of a successful challenge against the ATO, on the grounds that Jim is a non-Australian resident for taxation purposes.

From the information provided, you should also discuss how his receipts would be treated for taxation purposes, if he was an Australian resident.

This letter should be set out according to the example format of a 'Business Letter of Advice' that is provided in the L@G site. Your letter should NOT reference any law, this should be done in the File Note only. The letter needs to be in a language that the client will understand.

NOTE:

Refer to the Ruling and to the ATO website "New one-stop shop" ruling on residency.https://www.ato.gov.au/Tax-professionals/Newsroom/Income-tax/New-one-stop-shop-ruling-on-residency/