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Jose was born in Dili, East Timor and works as an engineer on a major oil & gas project in Bass Strait, located between Victoria

Jose was born in Dili, East Timor and works as an engineer on a major oil & gas project in Bass Strait, located between Victoria and Tasmania. He has been employed on the project since July 2020 on a fly-in fly-out basis, meaning he flies from his own home in Dili on the first of each month, arrives at Melbourne airport and then travels by helicopter to the oil rig 50 kilometres away in Bass Strait. Jose then spends the next 20 days working on the oil rig, before returning to Dili for the rest of the month. He does this for 11 months of the year. Whilst in Australia, he spends all his time on the oil rig either working or resting.

In the 2021 and 2022 income years Alex earns $400,000 per year from his job in Australia. He owns his own home in Dili, works with disadvantaged children and sings with the local church choir when he is at home. He also owns an apartment in Melbourne that he rents out to tenants for $600 per week.

Required: Using relevant legislation and case law, please answer the following questions:

  1. What are the factors that have been developed by the Courts to determine residence under the ORT, ie, the "resides" according to ordinary concepts test in section 6(1) of the ITAA 1936?
  2. Having regard to the factors, do you think Jose will be an Australian resident under this test? Are there any cases that help with your analysis?
  3. Is Jose a resident under any of the other residence tests?
  4. What is the source of Jose's employment and rental income?

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