Bulie v Tax Commissioner: Our Landmark Expat Australian Tax Residency Win

How Expat Taxes Australia Beat the ATO and Won a Landmark Australian Tax Residency Case For Mr Bulie

Some tax disputes, especially those involving Australian tax residency, turn on fiendishly complicated points of law. Some turn on plain old common sense. This one managed to be both.

Picture this.

You’re 56 years old. You have spent your whole career chasing oil-trading jobs around the planet, because that is where the work is and that is where the money is. You’re offered a big role in Singapore, at the heart of the global oil trade. You accept the role, sacrificing everything so that your family can stay put in Sydney, the kids can finish school, the mortgage can be paid down, and so that you can finally build something for retirement.

You do everything by the book. You lodge your tax returns. You pay what you are told. The Australian Taxation Office eyes your Singaporean salary, and says, “We’ll have some of that too thanks, before taxing it into oblivion.”

Until the day when you discover that Australia didn’t actually have any right to tax any of your Singaporean salary because a tax treaty existed that specifically prevented it.

Welcome to the world of Australian tax residency for expats. It is extremely complex, dry, fiddly, and most people’s eyes glaze over before you finish the phrase “double tax agreement.” Stay with me, because the Bulie case is one of the clearest examples you will ever see of how this stuff actually works, and of an arm of government using a deliberate strategy that, in our blunt opinion, fell a long, long way short of a fair go.

Let’s unpack it.

You learn that you’ve been paying tax to Australia unnecessarily. So you lodge an objection to the assessments you received for the relevant years. If you’re successful, the ATO will need to refund you some money, a lot of money.

And that is exactly why the ATO strategy looks like this. Knock back your objection. Perhaps unfairly. Wait to see if you can afford to fight. Many don’t. Many stop here. Why throw good money after bad, right?

Mr Bulie refused to stop there. On our advice, he decided to take it to the Administrative Review Tribunal and fight! And on 4 June 2026 the Administrative Review Tribunal told the ATO, in the politest possible language, that it had been wrong all along.

The decision is Bulie and Commissioner of Taxation [2026] ARTA 1003, and if you are an Australian working in Singapore, Tokyo, Bangkok, London, New York, or anywhere with a tax treaty, it is the most important residency decision that you will read this year. Not because the law has changed. But because the Tribunal has made the law impossible to dodge.

This is a long piece, but one that provides a fascinating insight into the ATO’s strategies and approach to taxpayer disputes. It’s a real eye-opener, so grab a coffee and settle back.

There is a difference between being a resident of Australia under Australian law, and being a resident of Australia under a tax treaty. You can be the first without being the second.

When two countries both want to call you a tax resident (yes, it’s possible and quite common) and want to tax your salary, the tax treaty needs to be considered because for tax treaty purposes, you can only be a tax resident of one country, not both. Accordingly, there’s a residency tie-breaker that determines in which country you are treated as resident for treaty purposes.

The residence tie-breaker in the treaty does not change or delete your domestic residency. Instead it decides which country you are treated as resident of for the purposes of applying the treaty. Then the treaty’s employment-income article tells you what each country can do with the salary. It runs in a specific order. Most people get it wrong.

And most importantly, in Mr Bulie’s case the tax treaty tie-breaker came down to a single question: with which country were his personal and economic relations closest?

The ATO’s answer was to argue that the speculative, unrealised growth (i.e. the theoretical paper gain), on his jointly owned Sydney home, an asset he and his wife still owned, and had not sold, was more economically important to his life than the actual salary that paid his bills and his and his family’s expenses. The Tribunal said, with admirable restraint, that this was nonsense. In this article, we’re unlikely to be quite so restrained about it.

Let’s walk through the whole thing.

A Quick Word on Why You Are Here

We are Australian accountants and tax agents, who specialise in tax advisory and tax preparation services for Australian expatriates. With Australian clients in well over 100 countries, 25 plus years of experience advising Australian expats, and with 25 plus years of expatriate life overseas ourselves, we were placed to assist Mr Bulie, who we acted for in this matter.

Mr Bulie has very kindly given us his express authorisation to write about the case publicly as he hopes that his experience may help other Australian expats with similar circumstances or those facing similar issues. Anyone who has dealt with the ATO on residency knows the patterns. This is one of the clearest illustrations of those patterns we have seen, and one of the cleanest wins on the underlying law in years.

We are going to be blunt about the ATO’s approach in this case. We are going to be more careful about the law, because the law is the thing that helps you.

The Trap Most Expats Fall Into

Here is the most common misconception we hear, week in, week out. “I have moved overseas, so I am not an Australian tax resident anymore.”

If only.

Australian tax residency is sticky. It is sticky on purpose. The system is built to assume you are still here unless you have done quite a lot to demonstrate otherwise. And even when you have moved your life, your job, your routine and your wardrobe to another country, you can still be considered a tax resident under Australia’s domestic tax rules.

That is the first trap. The second trap is the assumption that if you are an Australian resident, Australia automatically gets to tax everything you earn anywhere on the planet.

That is not always true either. Because tax treaties exist precisely for the situation where two countries both want to call you a tax resident and tax you on your income at the same time.

This is the distinction at the heart of Bulie.

Domestic Residency: How Australia Decides You Belong to It

Under Australian domestic taxation laws, you can become a resident through any one of four tests. You only need to satisfy one of the tests to be treated as a tax resident for Australian taxation purposes for the year.

Test one is the ordinary concepts test, sometimes called the “resides” test. This is the big test, with outcomes that are not necessarily that obvious. The question is whether, looking at everything about your life, you genuinely reside in Australia in the ordinary sense of that word. The factors include where your family is, where your home is, where you spend your time, what your physical presence in Australia looks like, your social and economic ties, your assets, your intentions and purpose of presence, your conduct and behaviour, and so on. There is no single tick-box. It is a weighing exercise.

Test two is the domicile test. Your domicile is the place you treat as your permanent home in the legal sense. If you have an Australian domicile, you are an Australian resident, unless the Tax Commissioner is satisfied that your permanent place of abode is outside Australia. The Federal Court has spent a lot of ink working out what “permanent place of abode” means for Australian expats, particularly in cases like Harding v Commissioner of Taxation [2019] FCAFC 29, but the short version is that a vague intention to come back one day is not enough. You need to have actually planted your life somewhere else, with a sense of permanence to it.

Test three is the 183-day test. If you are in Australia for at least 183 days in an income year, you are a tax resident, unless you can prove that your usual place of abode is overseas and you have no intention of taking up residence here. Of all the tests, this is the most innocuous and it’s perhaps the test to worry about least. The 183-day test looks simple because it starts with a number. That is usually a trap. Day counts matter, but the exceptions and surrounding facts still need to be checked before anyone declares victory.

Test four is the Commonwealth superannuation test, which only applies to certain Commonwealth employees. Most Australian expats can ignore it because it simply won’t apply to them.

For someone like Mr Bulie, who has been an Australian permanent resident for decades, has a wife who is an Australian citizen, has a jointly owned family home in Sydney, has children who lived in Australia during the relevant years, and who returns regularly, the ordinary concepts test (also known as the ‘Resides Test’) pulls hard towards Australia. Even if you live and work full-time in Singapore. Even if you are paid in Singapore dollars. Even if you only come back for school holidays.

If you keep coming back to Australia to stay with your family in the family home, the ATO will usually have a strong argument that you still reside here in the ordinary sense of the word. That is Australia’s primary residency test, and if it is satisfied, you are an Australian tax resident. Nor do short visits necessarily get you off the hook. Depending on the overall facts and circumstances, a taxpayer can be treated as residing in Australia even where the visits are relatively brief.

That is why Mr Bulie’s status as an Australian resident under Australian domestic law was not actually in dispute in this case. We, he and the ATO all accepted he was an Australian resident under our domestic rules.

The fight was about something else entirely.

Treaty Residency: Why a Tax Treaty Is the Adult in the Room

Singapore has its own residency rules too. Under Singapore’s domestic income tax laws, if you live and work there for long enough in a year, you are a Singapore tax resident. Mr Bulie ticked the Singapore tax residency box too.

So now you have a man who is, simultaneously, a tax resident of Australia under Australian law and a tax resident of Singapore under Singapore law. Both countries’ tax offices look at him and say “Hello, hello, hello. Where do you think you’re going? You belong to us.”

If we left it there, he would be taxed by both countries on the same income, which is the very definition of double taxation, and the very reason why tax treaties were invented… to prevent it.

Enter the Australia-Singapore Double Tax Agreement. Two countries sat down and signed an agreement saying: if both of us could claim a person under our own rules, here is how we will decide who actually gets to claim them under the tax treaty. There is a section called the residency tie-breaker, in Article 3(2) of the Australia-Singapore double tax agreement (DTA). It exists for exactly this situation.

The Tribunal in Bulie expressly recognised Mr Bulie as a tax resident of both Australia and Singapore under each country’s domestic income tax laws, and thus held that his case had to be resolved under the residency tie-breaker contained in the tax treaty.

This is the bit that catches most expats unaware. You can absolutely be a tax resident of two countries at once. That alone does not decide who taxes what. The treaty decides.

The Tie-Breaker, Step by Step

The Article 3(2) tie-breaker is not a balancing act. It is a cascade of tie-breaker tests. You start at the top, and you only move down to the next step of the tie-breaker if the step above cannot pick a winner.

Step one: permanent home. Does the person have a permanent home available to them in one country, but not in the other? If yes, that country wins. Stop. Game over.

Step two: habitual abode. Only used if you have a permanent home available to you in both countries, or in neither. Where do you habitually live in the sense of a settled routine of life, rather than the occasional stay?

Step three: personal and economic relations. Only used if the first two limbs of the tie-breaker cannot separate the countries. With which country are your personal and economic ties closest, when viewed as a whole?

By the time Bulie reached the Tribunal, both sides accepted that Mr Bulie had a permanent home in both countries and a habitual abode in both countries. Steps one and two were draws.

The entire case came down to step three. Which country were Mr Bulie’s personal and economic ties closest?

A Quick Word about Step One, and the ATO’s About Face

Worth pausing here, because step one is where the ATO originally rejected Mr Bulie’s original objection. The ATO argued that Mr Bulie’s Singapore home was rented and therefore not a “permanent home,” while his Sydney home was owned and therefore was. They reasoned that he only had one permanent home available to him, in Australia. Game over, according to the ATO at step one. So they disallowed Mr Bulie’s objection.

There was just one problem. The OECD Commentary on the Model Tax Convention is not legislation, but it is a recognised interpretive aid in treaty work, and the ATO’s own treaty interpretation ruling accepts that treaty interpretation is approached through that international-law lens. The relevant point is straightforward: a home does not need to be owned to be permanent. A rented apartment, and even a rented furnished room, can be a permanent home if it is continuously available to the taxpayer. A title deed is not the test.

Mr Bulie leased the same apartment in Singapore continuously from the start of 2018 to the end of August 2022, then leased his next apartment continuously after that, furnished it himself, kept his and some of his wife’s belongings there, and came home to it every time he was in Singapore. That is the textbook definition of a permanent home available to him in the treaty sense.

And here is the kicker. In our view, the ATO knew this. It had said as much in a large number of past private rulings and interpretive material. Yet the ATO ignored that and disallowed Mr Bulie’s objection anyway.

What happened next is telling. About six months out from the Tribunal hearing, the ATO formally wrote to us announcing it was removing the permanent home issue from its case entirely. By its amended case in November 2025, the ATO conceded what we had said all along: Mr Bulie did indeed have a permanent home in both countries.

Sit with that for a second. The grounds that the ATO used to reject Mr Bulie’s original objection, forcing him into a costly fight in a tribunal, were the very grounds the ATO abandoned once Mr Bulie showed his teeth and the fight got real.

If you are wondering why a government agency would advance an argument it would later concede, you are asking the right question. Hold onto it. We’ll come back to it.

Step Three: Pike, and the Real Fight

So with the “permanent home argument available” out of the way, the case turned entirely on whether Mr Bulie’s personal and economic relations were closest to Singapore or to Australia. To understand what the Tribunal did, you have to understand Commissioner of Taxation v Pike [2020] FCAFC 158, because Pike is the case that influences this area.

Mr Pike worked in Thailand. His family lived in Australia. He spent most of his time overseas, came back to visit, rented his accommodation in both countries, kept Australian bank accounts, and at one point owned a block of vacant land in Australia that he later sold without building on it. Sound a bit familiar?

The Full Federal Court in Commissioner of Taxation v Pike [2020] FCAFC 158, upholding Justice Logan’s first-instance decision in Pike v Commissioner of Taxation [2019] FCA 2185, set down the principle that has been governing these disputes ever since. It is not a tally. You do not score personal ties out of ten and economic ties out of ten and add them up. You look at the whole of the person’s life and you ask where they really sit, giving the greatest weight to the factors that matter most and that are the most significant to that particular person.

For Mr Pike, the Court attached significant weight to his overseas employment and income-producing activities. That foreign salary was the engine of his entire economic life, the thing that supported him in Thailand and his family back in Australia. So his economic relations sat where the income came from. The Australian land, which produced no income, “pales into relative insignificance” beside the Thai employment.

The ATO accepted all of this in the formal Decision Impact Statement on Pike. In that, the Tax Commissioner stated that where personal and economic factors sit with both countries, the factors of more significance to the taxpayer carry the greater weight.

That is the ATO’s own stated position. In writing. On its own website. Remember that, because it is about to do some heavy lifting.

What the ATO Tried to Do With Mr Bulie

When the ATO needed to argue that Mr Bulie’s economic ties were closer to Australia than to Singapore, it ran into a small problem. Mr Bulie earned practically all of his income (which was significant) in Singapore. His income from Australian sources during the relevant years was a trickle of bank interest you could count without taking your shoes off. His employer was in Singapore. His pay-cheques were in Singapore. The mortgage on his Sydney home was being paid down by money flowing out of Singapore. His Singaporean income paid for all his bills, all his expenses and it put all the food on his table.

You cannot win the “economic ties closer to Australia” argument with that fact pattern by talking about income, because the income points the other way, to Singapore, not to Australia. So the ATO went looking for something else to wave around.

It found the family home.

Mr Bulie and his wife had owned their Sydney home jointly since 2013. Over the years, like a lot of Sydney property, it had grown in value substantially. The ATO pointed at that growth and said: look how big a number that is, let’s try it on. With that, the ATO argued that the theoretical gains on made on paper for that property, meant that Mr Bulie’s economic relations with Australia were at least equal to, or stronger than, his economic relations with Singapore.

Now read that argument again, slowly. Because once you do, the problems start lining up.

Why the ATO’s Argument Fails on Its Own Terms

There are four problems with the comparison, and any one of them on its own should have killed the argument. All four together turn it from a strained position into something that, in our considered view, was indefensible.

Problem one. The gain on the house was theoretical, speculative and unrealised. The house had not been sold. No cash had changed hands. No tax had been triggered. The growth existed as a theoretical estimate on a real estate website, not as dollars in Mr Bulie’s bank account. Those speculative, theoretical gains, don’t put food on your table. You cannot eat your home’s realestate.com.au estimate, and the ATO knows that perfectly well, because although they tax practically everything else, in most ordinary CGT situations, the ATO does not tax unrealised gains either!

Problem two. The gain accrued over many years. Treaty residency is assessed year by year, on a snapshot of the actual income year. So if you really insist on comparing a capital gain to an annual salary, you have to annualise the theoretical gains and spread them across the years it took for those theoretical gains to accrue. You do not stack a decade of paper growth into a single year and pretend that is a fair fight by comparing that number to a person’s pay packet for the year.

Problem three. The ATO attributed 100% of the theoretical gains entirely to Mr Bulie. Yet, the home was jointly owned. Mr Bulie owns it fifty-fifty with his wife. So even if you were to ignore problems one and two, you can only count half of the gain. The other half belongs to someone who is not the taxpayer in this case.

The ATO’s approach, of applying 10 years of theoretical, unrealised gains, and attributing 100% of those theoretical gains to a person who only owns half of the property is not just mathematically flawed, it’s grossly unfair and in our opinion, lacks integrity, wouldn’t you agree?

Now think about what happens when you actually apply problems two and three to the ATO’s own argument. Halve the growth so you are only counting Mr Bulie’s share, then spread it across the roughly decade-long period over which it accrued, and the annual figure that you can fairly attribute to Mr Bulie shrinks to a small number. A number that is a tiny fraction of what he earned in a single year of work in Singapore. On the ATO’s own numbers. Using the ATO’s own comparison. Properly adjusted, Mr Bulie’s salary dwarfs the annualised, halved, unrealised, theoretical, paper growth on his and his wife’s family home, many times over.

There is no version of this where Mr Bulie’s family home out-muscles the job. Even if you indulge the comparison the ATO wanted to run. The ATO had to know this, because understanding basic arithmetic is not a closely guarded national secret.

Problem four is the most fundamental, and it is what the Tribunal eventually relied on. The comparison confuses two completely different kinds of economic relations. An unrealised capital gain on a non-income-producing asset is theoretical until you sell. Prices may go up, prices may go down. Recurring employment income on the other hand, is the money that lands in the account every month and runs the household. One is a number on a screen on a real-estate website. The other is an economic lifeline that pays the bills and puts food on your table.

Treating them as the same kind of thing, for the purpose of working out where a person’s economic life sits, is the entire error. It is the exact mistake Pike warned against, in the exact words the ATO had previously endorsed in its own Decision Impact Statement.

What the Tribunal Said

The Tribunal worked through all of this in paragraphs 29 to 32 of its reasons, which we suspect will become some of the most quoted passages in expat residency disputes for years to come.

The Tribunal accepted that Mr Bulie’s Sydney family home was a bigger and longer-held asset than Mr Pike’s vacant block of land. It accepted that quantitatively, it represented a more substantial connection to Australia than Mr Pike’s land had been.

But, crucially, it held that the home was not qualitatively different from Mr Pike’s land for the purposes of this test. Because, like the land, it did not produce income. And in the Tribunal’s words, “capital appreciation is not the same thing as realised income” when you are measuring annual economic relations. It is not the same kind of economic activity. It does not, the Tribunal accepted, alter the taxpayer’s actual recurring economic activity, which remained centred in Singapore.

In other words, the home was big. So what. It didn’t put food on the table. The salary was the economic life.

That finding goes straight to the heart of the ATO’s case. It does not nibble around the edges. It guts it. And it does so in language that is going to be very difficult for the ATO to argue around in future cases.

The Idea Worth Tattooing on Your Forehead

Strip the legal scaffolding away, and the principle is one of the cleanest in tax. Wealth is not the same thing as economic activity.

Think about a retiree who owns a multi-million-dollar home in Sydney but lives almost entirely overseas. The asset is enormous. The economic life is not in Sydney. Or a farmer whose family income comes mostly from a side business while the land sits there worth a fortune. The land is the big number. The business is where the activity lives.

Your economic relations are not measured by finding the biggest number on your balance sheet and planting a flag next to it. They are measured by looking at where your economic life actually occurs. Where the work is done. Where the money is earned. Where the lifeline runs from.

That is what Pike said. It is what Bulie has now confirmed in language so plain it cannot be misunderstood. And it is what the ATO, in our respectful but blunt view, deliberately tried to muddy.

This is the work we do, day in and day out, at Expat Taxes Australia. If anything above is starting to sound uncomfortably like your situation, it costs nothing to find out where you stand.

The Soccer Referee, and Why the Objection Process Is Stacked

Now, why would the ATO push an argument like that, on a record like this, when its own published position on Pike pointed exactly the other way?

We think the answer is structural, and the easiest way to explain it is with a sport analogy. Picture a soccer match. The referee blows his whistle, points to the spot, and awards a penalty against your team, right in front of goal. You are the captain. You jog over to discuss it. You explain, politely, that you do not think there was a foul.

The referee listens. He considers your arguments carefully. And then it dawns on you. The referee also happens to be the captain of the opposing team.

That is the Australian tax objection process, in a sentence.

The same institution issues the assessment. The same institution decides whether your objection to that assessment is valid. The same institution then defends its own decision if you push to the Tribunal. The ATO is the referee, the opposing captain, and the player who got fouled, all at once, right up until the moment an independent umpire walks onto the pitch in the form of the Administrative Review Tribunal or a court.

That is not necessarily improper. It is how the legislation is built. But it creates an obvious structural pressure. The body reviewing the decision has a natural institutional bias (despite that they declare that they do not) and an interest in the letting the decision stand.

And here’s the kicker. Getting to that independent umpire costs money. Real money. Accountants. Lawyers, barristers, evidence, time, energy, and stress, with no guarantee that any of it comes back at all. A lot of taxpayers do the maths on that and decide they can’t afford to keep going. They pay a tax bill they know they should not owe, because the alternative is more painful and more expensive than simply paying the tax they don’t believe they owe.

The ATO knows this perfectly well. It is structurally aware that for every taxpayer who escalates, many others fold. And once you understand that, the logic of pushing weak arguments at the objection stage becomes less mysterious. It is not about winning at the Tribunal. It is about winning before anyone gets to the Tribunal.

We think that is what happened here. We cannot prove the intention. We do not need to. The pattern is what troubles us. The ATO ran a permanent home argument that it later abandoned. It ran a wealth-equals-income argument that fails on its own arithmetic, never mind on Pike. It did so against a record that it had itself, in numerous similar matters for other taxpayers, accepted pointed the other way. And it did so in the knowledge that pressing the point past the objection stage would cost the taxpayer years and an enormous amount of money.

This is not, in our opinion, the conduct of an agency that has the right answer and wants the Tribunal to confirm it. It is, in our view, the conduct of an agency that knows the right answer and is betting the taxpayer cannot afford to make it find that answer.

Call that heavy-handed. Call it unnecessarily adversarial. Call it a system that works favourably for the side with the deeper pockets. Call it what it is.

Whatever label you choose, it is not how ordinary taxpayers expect fairness to feel.

Does Any of This Square With the ATO Charter?

The ATO has a published Charter. It commits, among other things, to act with integrity, to treat taxpayers fairly and reasonably, to be professional, and to be transparent. We agree with all of those commitments. They are exactly the right commitments for a tax administration to make.

We are not going to tell you whether they were honoured here. We are also not going to pretend that the Charter gives taxpayers a magic wand. It does not. But it does give us a yardstick. So let’s measure by walking you through five questions and let you reach your own view.

The first question is about fairness. The ATO’s original objection decision rejected Mr Bulie’s case partly on the ground that his continuously leased Singapore apartment was not a “permanent home” for treaty purposes.

That argument required the ATO to ignore the OECD Commentary on the Model Tax Convention, an interpretive resource that Australian courts, including the Full Federal Court in Pike itself, have long recognised as a legitimate aid to construing tax treaties. It is not some obscure academic paper. It is the interpretive backbone the ATO itself relies on in essentially every treaty matter it decides, including the hundreds of private binding rulings it issues each year on treaty residency questions. That same OECD Commentary specifically confirms that a rented apartment can be a permanent home for treaty purposes.

The ATO’s argument also ignored a string of earlier ATO private rulings that had applied that same principle to other taxpayers on materially similar facts. And it ignored the fact that Mr Bulie had been living in the same Singapore apartment continuously for years, furnished by him, holding his belongings, and available to him at all times.

Then, on the way to the Tribunal, the ATO formally wrote to us, conceded the point, and removed it from the case. Is it consistent with treating a taxpayer fairly to reject an objection on a ground the ATO itself abandons the moment the case reaches an independent tribunal?

The second question is about following the law. The leading case is Pike, decided by the Full Federal Court in 2020. Pike holds that a non-income-producing Australian asset does not compete with foreign employment income for the purpose of working out where a person’s economic relations are closer.

The ATO agrees with that principle. Years before Mr Bulie’s objection was even lodged, the ATO published its agreement in a formal Decision Impact Statement on Pike, which sits publicly on the ATO’s own website today. In relation to this exact test, the ATO states in that Statement that when personal and economic factors are present in both countries, “the factors of more significance to the taxpayer have greater weight.” That is the ATO’s own settled position, written in its own hand.

Yet in Mr Bulie’s case, the ATO argued exactly the opposite. It said the unrealised growth on Mr Bulie’s Sydney home, a non-income-producing Australian asset, was economically greater than, or at least comparable to the Singapore employment income that was actually funding Mr Bulie’s family.

The Tribunal rejected that argument. Applying Pike, it held that although the Sydney Home was a quantitatively more significant asset than Mr Pike’s vacant land, it was not qualitatively different for the purposes of this test, because it did not produce income. Capital appreciation was no substitute for realised income, and the Sydney Home did not alter Mr Bulie’s recurring economic activity, which remained centred in Singapore.

Is it consistent with following the law to run an argument against a principle the ATO has itself published as its own settled position?

The third question is about reasonableness. Active income and unrealised capital gains are fundamentally different things, and everyone including the ATO knows this.

Active income, meaning salary, business profits and investment income actually received, is money the taxpayer has actually earned and can actually spend. It pays the mortgage, the school fees and the groceries. It puts food on the family’s table.

An unrealised capital gain, by contrast, is nothing more than a theoretical number on a real estate website, a paper gain that may or may not ever be achieved. The taxpayer cannot spend it, has not received it, and, tellingly, the ATO itself does not tax it as income. Unrealised gains only become assessable when the asset is sold and the gain is realised in a specific year.

That is not our view. That is the ATO’s own settled tax treatment, embedded in the capital gains tax rules that every ATO officer knows and applies every day.

Is it consistent with acting reasonably to weigh a theoretical, unrealised, may-never-be-achieved paper gain against the active, recurring salary income that actually funds a family’s life, when the ATO’s own tax rules treat those two things as fundamentally different?

The fourth question is about professionalism. Even if we set aside the qualitative problem in question three and indulge the ATO’s own apples-and-oranges comparison on its own terms, the arithmetic collapses woefully.

Mr Bulie owns the Sydney home jointly with his wife, so only half of any growth is properly attributable to him. And the growth built up over roughly a decade, not a single year, so if we are comparing to a single year of salary, the paper growth must be annualised too.

Halve the ATO’s own growth figures for joint ownership. Spread them across the years they took to accrue. Do those two obvious corrections and the annual paper growth attributable to Mr Bulie shrinks to a small fraction of what he actually earned in Singapore in a single year.

The ATO’s comparison did neither correction. It attributed the whole gain to Mr Bulie as if his wife did not exist. It stacked a decade of paper growth against a single year of salary as if that comparison were fair. And it presented the result to Mr Bulie as though it settled the question of where his economic ties were closest.

Is it consistent with acting professionally to run a comparison whose arithmetic falls apart the moment two obvious things are corrected, and to present that comparison as a settled economic conclusion?

The fifth question is about integrity. During Mr Bulie’s objection, we put a worked record in front of the ATO case officer showing that the ATO had, on materially identical facts, previously ruled in favour of another Australian expat living in Singapore, applying the exact analysis we were now advancing for Mr Bulie. That other expat was our client, so we knew his circumstances intimately, and we obtained his express authorisation before providing the material to the ATO.

That is not the end of it. Our own research through the ATO’s own edited private advice register turned up more than 40 further private binding rulings issued in recent years which, in our view, dealt with materially similar treaty-residency fact patterns and reached conclusions consistent with the analysis we were advancing for Mr Bulie.

Every one of those rulings is publicly available on the ATO’s own website. Every one of them appears to have been either overlooked or forgotten when Mr Bulie’s objection was being decided. The objection decision that followed did not reference any of the material we had provided, did not explain why materially similar facts should produce a different result for Mr Bulie, and did not respond to the consistency point at all.

Is it consistent with acting with integrity to press on with an argument against a taxpayer while ignoring evidence, handed to you by that taxpayer, of your own contrary position on materially similar facts, evidence that reflects your own settled interpretive practice in more than 40 separate rulings?

A note for the lawyers. We are not saying private rulings bind the ATO to other taxpayers. The Tribunal made clear in this case that they have no precedential effect, and we accept that entirely without quibble. The point is not precedent. The point is consistency, fairness, integrity, and the appearance of integrity.

The relevant material was put in front of the ATO. The ATO did not engage with it. Read into that what you will.

We Had Seen This Movie Before

This was not a one-off. Over recent years, we have run this same analysis, applying the same treaty principles in the same way, for a large number of Australian expatriates based in Singapore and in numerous other countries around the world. It’s an argument that we run often. Big foreign salary. Family in Australia. Owned home here. Leased home there. The ATO, in those earlier matters and on materially similar facts, accepted the analysis we put forward and issued favourable outcomes in practically every case.

With one of those Singapore-based clients’ express authorisation, we provided that evidence to the ATO case officer assigned to Mr Bulie’s objection. The private rulings. The supporting analysis. The ATO’s own conclusions agreeing with our reading of the treaty.

The ATO’s response to that evidence, to put it generously, was conspicuously silent. They simply refused to acknowledge it at all.

Now, we have already said that private rulings do not bind anyone. They do not. But this point is not about precedent. It is about the ATO’s administrative practice for materially similar matters, and whether the ATO, an institution committed in writing to acting consistently and fairly, can in good conscience reach radically different outcomes on materially similar facts, ignore the material when it is pointed out, and then expect the taxpayer to spend his own money, running up costly legal fees, proving in a Tribunal what the ATO has already accepted elsewhere.

You can decide for yourself what you think about that.

The Uncomfortable Reality

Strip everything away, and the most uncomfortable truth about this case is not in the legal reasoning. It is in the dynamics.

Had Mr Bulie stopped at the objection stage, the ATO would have won. Not because the Tax Commissioner was right. The Tribunal has now told us very plainly that the Tax Commissioner was not right. The ATO would have won because, at the objection stage, the Tax Commissioner is also the umpire and the umpire incorrectly said “no”.

Plenty of taxpayers do stop there. They cannot afford the fight, or they cannot face it, or both. For them, the objection decision is the end of the road. Right or wrong.

Mr Bulie did not stop. Most of the principle in this case was vindicated only because he had the resolve to keep going. That is a happy ending for him. It is a more unsettling story about everyone else in a similar position, who could not.

What the Bulie Case Means for You as an Australian Expat

Time to bring it back to what you actually need to know if you are an Australian working overseas, or thinking about it.

• Australian tax residency under Australia’s domestic law can be sticky. Just moving overseas, on its own, is rarely enough. Family connections, your Australian home, your patterns of return, your assets, and your intentions all weigh in. Plan deliberately, with proper advice.
• You can be a tax resident of two countries at once. That is normal, not weird. When it happens, the relevant tax treaty’s tie-breaker decides who gets to tax your salary. Australia does not automatically win.
• A rented home overseas can absolutely be a permanent home available to you under the treaty. Title deeds are not the point. Arranging the home for your permanent use, and continuous availability is. Do not let anyone tell you otherwise.
• Personal and economic relations are judged as a composite whole, not as two separate scorecards. The factors that matter most to you, often the source of your ongoing income, carry the most weight.
• Owning a home in Australia does not automatically pull your economic relations back to Australia for treaty purposes. If it does not produce income, it does not compete with the salary that funds your life.
• Speculative, unrealised capital growth on a property is not the same thing as income. Not now. Not for treaty residency. Not for anything until you sell.
• An ATO objection decision is not the last word. The Administrative Review Tribunal is an independent umpire, and on the right facts it will tell the ATO so. If you have an arguable case, fight it.

The Tribunal’s Decision Is Final

The Tax Commissioner had a right to appeal the Tribunal’s decision to the Federal Court on a question of law. That appeal window has now expired without any appeal being lodged. The Tribunal’s decision is therefore final, and Mr Bulie’s win is complete.

Adding Insult to Injury: The Interest Underpayment

You would think that would be the end of it. The Tribunal ruled. The appeal window closed. The ATO lost. All that remained was for the ATO to do what the law requires of it when it loses: amend the assessments, refund the tax, and pay Mr Bulie the interest he is owed on money it should never have taken in the first place.

That last part is not optional. Under the Taxation (Interest on Overpayments and Early Payments) Act 1983, when tax is refunded as a result of a decision like this one, the Tax Commissioner must pay interest on the overpaid amount for the period it was held, calculated at the base interest rate that applies for each quarter. It is a statutory entitlement. There is a formula. The ATO applies that formula routinely.

The Tax Commissioner also has 60 days to give effect to a Tribunal decision once it becomes final, under section 14ZZL of the Taxation Administration Act 1953. The decision became final at the end of 2 July 2026. That put the deadline at 31 August 2026.

So we did what any careful adviser would do. On 3 July, the day after the appeal window closed, we wrote to the Australian Government Solicitor asking the ATO to confirm its timing and, importantly, to provide its calculations for the amended assessments, the refunds and the interest, so that we could check them. On 10 July, the ATO’s litigation lawyer replied that the amendments would be processed within the 60 days and suggested that a statement of account would answer any questions. We wrote back the same day to say, politely, that a statement of account shows the numbers but not the working. We asked again, formally, for the calculations.

We never received them.

What we received instead, on 11 August, was a credit to Mr Bulie’s ATO account of just under $51,000, described as “Interest on overpayment”. The refunds themselves were paid. On the face of it, the matter was closed.

Except we had already done our own sums. Applying the statutory formula, the quarterly base interest rates and the actual dates on which each year’s tax was overpaid, we calculated that the interest properly payable to Mr Bulie across the 2018 to 2022 income years was a little over $107,500.

The ATO had paid less than half of it. The shortfall was more than $56,000.

That is not a rounding difference. It is not a quibble about methodology. It is a gap of more than fifty thousand dollars on a calculation governed by a formula in an Act of Parliament. And it landed on the account of a taxpayer who had just spent years, and a great deal of money, proving the ATO wrong.

On 24 August we wrote to the ATO again. We set out our calculations year by year, attached the supporting schedules, and asked the ATO to recalculate the interest, to show its working, to explain how it had arrived at its figure, and to pay the balance together with any further interest owing on the delay. We reminded the ATO that we had first asked for its calculations on 10 July, and that the 60-day clock ran out on 31 August.

On 27 August, four days before that deadline, the ATO replied that additional interest had been applied to Mr Bulie’s account. The statement of account confirmed taht the shortfall was paid in full. But there was no explanation of how the original figure had been arrived at, and no calculations. Just a quiet top-up, and a request that we confirm the updated amounts were now visible on the account.

Here is the part worth sitting with. If we had not independently recalculated the interest, that shortfall would in all likelihood have stayed exactly where it was. The credit appeared on the account with an official-sounding label. Most taxpayers, and frankly most advisers, would have looked at “Interest on overpayment”, seen a five-figure number, and assumed the ATO had done its job. The ATO had declined to provide its calculations. There was nothing on the statement of account to suggest anything was missing. The only reason the underpayment came to light is that we refused to take the number on trust and did the arithmetic ourselves.

We asked the ATO, on three separate occasions, to show us how it arrived at a figure less than half of what the statute requires. To date, it has not. No calculations. No explanation. The requests were simply ignored.

What we can say is this. A shortfall of more than $56,000 on a statutory interest calculation is not a rounding error. We do not know how the original figure was reached, because the calculations were not provided. But it’s difficult to imagine that a shortfall of such magnitude could be an error. And this is the same agency which, in the same matter, ran a permanent home argument it later abandoned and a wealth-equals-income argument that collapsed under basic arithmetic. Earlier in this article we described a pattern of conduct. That pattern did not end when the Tribunal handed down its decision. It carried on, quietly, into the way the decision was implemented. Readers can draw their own conclusions.

The lesson for every taxpayer who wins against the ATO is simple. Winning the case is not the end. Check the implementation. Check the amended assessments. Check the refund. And check the interest, line by line, against the statute, because the ATO will not necessarily show you how it got its number, and the number may be wrong.

Final Thoughts

Tax law is genuinely complicated. The principle at the centre of this case was not.

A man moved to Singapore for a permanent role. He built his career there. He earned his income there. He paid his tax there. His economic life was there. The ATO spent years arguing it was somewhere else. The Tribunal was not persuaded.

Sometimes the hardest part of tax is not working out what the law says. It is persuading the tax office to follow it.

If the ATO has put you in Mr Bulie’s position, you do not have to simply accept it. This is the work we do, every day, at Expat Taxes Australia. We have been here before. We expect to be here again. And every time, we will turn up and fight the fight.

Talk to Someone Who Does This for a Living

If anything in this article rings bells about your own situation, the smartest move is to get advice early. The window to object to an ATO assessment is finite. The window to escalate after a knock-back is just 60 days. And the longer you wait, the less room you have to fix things cleanly.

Three groups of people typically pick up the phone to us after reading something like this.

• Australians who have just received an ATO assessment or amendment they believe is wrong.
• Australians planning a move overseas who want to get their residency analysis right from day one, before the assessments start arriving.
• Australians already living overseas who want a second opinion on whether they are being treated correctly under Australian law and the relevant tax treaty.

If any of those sound like you, we would like to hear from you. Our consultations are confidential, focused, and led by chartered accountants who specialise in Australian expatriate tax. We act for Australian clients all over the world, including those in treaty countries where Bulie applies directly, and those in non-treaty jurisdictions like Hong Kong and the United Arab Emirates, where the analysis runs differently.

Frequently Asked Questions

Can I be a tax resident of both Australia and another country at the same time?

Yes. Each country applies its own residency rules. If both rules catch you in the same year, you are a dual resident. The tax treaty between the two countries then steps in. Its tie-breaker rules decide which country you are treated as resident of for treaty purposes. The treaty’s other articles then determine how particular income, such as salary, dividends or business profits, can be taxed. In Bulie, the relevant tie-breaker was Article 3(2) of the Australia – Singapore tax treaty.

Do I have to pay tax in Australia if I work overseas?

It depends first on your Australian tax residency under domestic law. If you remain an Australian tax resident, Australia generally taxes your worldwide income, including foreign salary. If you are also a tax resident of the country where you work, the relevant treaty may then limit Australia’s taxing rights. In Bulie, the treaty residence tie-breaker treated Mr Bulie as Singapore-resident for treaty purposes, and that affected Australia’s ability to tax the Singapore employment income.

What is the difference between Australian tax residency and Australian citizenship?

They are completely separate concepts. Citizenship is about your nationality and your right to live in Australia indefinitely. Tax residency is about whether Australian tax law treats you as a resident for tax purposes in a particular income year. You can be a non-resident Australian citizen, or an Australian tax resident who is not a citizen. Mr Bulie, for example, is a Norwegian citizen and an Australian permanent resident, and was held by the Tribunal to be a Singapore resident for tax treaty purposes.

Does owning a home in Australia make me an Australian tax resident?

It is one of the factors in the analysis, and often a meaningful one, but it is not decisive on its own. Under Australian domestic law, the home is part of the wider factual picture. Under the treaty tie-breaker considered in Bulie, the Tribunal held that an Australian home which produced no income did not outweigh the foreign employment income when assessing where the taxpayer’s economic relations were closest.

Is a rented apartment that you lease overseas a “permanent home available” to you under a tax treaty?

It can be. The OECD Commentary on the model treaty accepts that a rented home, even a rented furnished room, can be a permanent home, provided it is continuously available to the person. In Bulie, the ATO ultimately conceded that a long-term, continuously leased Singapore apartment was indeed a permanent home available to Mr Bulie.

What does “permanent home available” to you mean in a tax treaty?

A permanent home is a dwelling continuously available to you, in the sense that you have arranged for it to be there whenever you need it, rather than merely using short-stay accommodation. It can be owned or rented. A house, apartment, or even a rented furnished room may qualify under the OECD Commentary. What matters is permanence in the sense of availability, not the name on the title.

What is the Model Tax Convention?

The OECD Model Tax Convention is an influential tax treaty template, supported by detailed Commentary, that countries often use as a starting point when negotiating tax treaties. It is not itself the law. The actual treaty between the two countries is the law, and the wording of that treaty must always be checked.

What does “habitual abode” mean in a tax treaty?

Habitual abode looks at where you customarily live as part of a settled routine of life, rather than where you happen to be on any given day. The OECD Commentary explains that it considers the frequency, duration, and regularity of stays in each country that are part of that settled routine. It is possible to have a habitual abode in two countries at the same time, which is what the parties accepted in Bulie.

What is the “personal and economic relations” test in a tax treaty?

The personal and economic relations test is a residency tie-breaker test contained in Australia’s tax treaties. The test seeks to determine which country a person’s personal and economic relations are closest to. Personal and economic relations describe the totality of your personal connections and your economic activity, considered together as a single composite picture. Personal relations include family, social ties, and club memberships. Economic relations include your employment, business interests, the source of your income, and similar. The Full Federal Court in Pike, and the Tribunal in Bulie, both confirm that the most weight goes to the factors of most significance to the particular taxpayer, often the source of their ongoing income.

Does unrealised capital growth count as income for tax residency purposes?

No. The Tribunal in Bulie held that a paper gain on a property that has not been sold is not the same kind of thing as realised income, and is not the right measure of a person’s recurring economic activity for the purpose of the treaty tie-breaker.

Does the Bulie decision apply to other countries besides Singapore?

The decision itself concerns the Australia – Singapore tax treaty, but the principles it applies, drawn from Pike and the OECD Commentary, are relevant across much of Australia’s treaty network. Many Australian treaties contain a residence tie-breaker dealing with dual residents, but the wording, order and article numbering vary. So Bulie is highly useful, but the first job is still to read the actual treaty in front of you. Tax law, inconveniently, refuses to be determined by ‘the vibe of it’. It is also important to note that some popular destinations for Australian expats, including Hong Kong and the United Arab Emirates, do not have a comprehensive tax treaty with Australia. For Australians working in those jurisdictions, the treaty tie-breaker in Bulie does not apply directly, and Australian tax residency is determined under Australia’s domestic tax rules.

What is the Pike case and why does it matter for Australian expats?

Commissioner of Taxation v Pike [2020] FCAFC 158, decided by the Full Federal Court, is the leading authority on the personal and economic relations tie-breaker. It treats the test as a composite, holistic one, with the most weight given to the factors most significant to the taxpayer, often the source of their ongoing income. Bulie has now applied and reinforced it.

Can I rely on a private binding ruling issued to someone else?

No. A private binding ruling binds the Tax Commissioner only in relation to the taxpayer to whom it was issued, on the facts described in it. Other taxpayers cannot legally rely on it. The Tribunal in Bulie made clear that private rulings do not have precedential effect. They may still be relevant as evidence of the ATO’s interpretive approach, but they do not bind anyone other than the original applicant.

How long do I have to lodge an objection to an ATO assessment?

Broadly, an individual taxpayer will usually have either two or four years from the date of the assessment to lodge an objection, depending on their circumstances and the type of assessment involved. Different time limits can apply, and late objections may be possible in some cases but require the Commissioner to accept the delay. Do not leave this to the last minute. Accordingly, it is important to obtain advice as soon as possible if you are considering challenging an assessment.

Can I challenge an ATO objection decision?

Yes. If the ATO disallows your objection, you can apply to the Administrative Review Tribunal for an independent review, or in some cases go directly to the Federal Court. The Tribunal can set aside the ATO’s decision and substitute its own, which is exactly what happened in Bulie.

How long do I have to apply to the ART for review of an ATO objection decision?

Generally, you have 60 days from the date the ATO’s objection decision is given to you. Extensions of time may be available in appropriate circumstances, but they are not automatic and require a substantive reason for the delay.

What is the ATO Charter?

The ATO Charter is the published statement of how the ATO commits to treat taxpayers, and what it expects from taxpayers in return. It sets out commitments to act with integrity, treat taxpayers fairly and reasonably, be professional, and be transparent, among others. The Charter does not create legal rights enforceable in court, but it does set the standard against which the ATO’s own conduct can be measured.

What was the outcome of Bulie?

On 4 June 2026, the Administrative Review Tribunal set aside the ATO’s objection decision and allowed the objection in full, finding that Mr Bulie’s personal and economic relations were closest to Singapore. The decision is Bulie and Commissioner of Taxation [2026] ARTA 1003

This article is general information only and is based on the published decision in Bulie and Commissioner of Taxation [2026] ARTA 1003. It is not personal tax or legal advice. Tax residency outcomes depend on each person’s specific facts, and the right course of action will depend on yours. Please obtain advice tailored to your circumstances before acting. Views expressed about the conduct of the dispute are the firm’s own opinion as the taxpayer’s advisers, offered as fair comment on a publicly decided matter.

Published with Mr Bulie’s express authorisation.

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References

• Bulie and Commissioner of Taxation (Taxation) [2026] ARTA 1003, Administrative Review Tribunal, 4 June 2026.
• Commissioner of Taxation v Pike [2020] FCAFC 158, Full Court of the Federal Court of Australia.
• Pike v Commissioner of Taxation [2019] FCA 2185, Federal Court of Australia (Logan J).
• Harding v Commissioner of Taxation [2019] FCAFC 29, Full Court of the Federal Court of Australia.
• Agreement between the Government of the Commonwealth of Australia and the Government of the Republic of Singapore for the Avoidance of Double Taxation and the Prevention of Fiscal Evasion with respect to Taxes on Income [1969] ATS 14, Article 3(2).
• ATO Legal Database, Decision Impact Statement: Commissioner of Taxation v Pike.
• Taxation Ruling TR 2001/13, Income tax: Interpreting Australia’s Double Tax Agreements.
• OECD, Model Tax Convention on Income and on Capital (2017), Commentary on Article 4 (Resident).
• Income Tax Assessment Act 1936 (Cth), subsection 6(1), definition of “resident”.
• Taxation Administration Act 1953 (Cth), sections 14ZZC, 14ZZK and 14ZZL.
• Taxation (Interest on Overpayments and Early Payments) Act 1983 (Cth), Part III, sections 9 and 10.
• Administrative Review Tribunal Act 2024 (Cth), sections 172 and 174.
• ATO Charter.